HomeMy WebLinkAboutCOM 0210.005 2004-2006 c r.,. ~ ~l ~
REQUEST FOR PROPOSAL NO. 2146:
;C.
REQUEST FOR PROPOSALS
FOR
FINANCING, DESIGN, CONSTRUCTION AND OPERATION
' OF A SORT STATION AND/OR MUNICIPAL SOLID WASTE
REDUCTION FACILITY FOR THE DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT,
COUNTY OF HAWAII
' HILO, HAWAI ~ I Z 1 0.5
Comm. No.
Ref. To: ~1BiQ~1° ~L
Ref. Date p]AY 1=l ~5
(Note: Due to its size, RFP is on file in the Clerk's Office.)
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SEALED PROPOSALS will be received on or before 4;30 P.M,, FRIDAY
1ANUARY21, ZOOS, in the office of the Purchasing Division, Department of Finance, County of
Hawaii, 25 Aupuni Street, Hilo, Hawaii, for the following:
REQUEST FOR PROPOSAL NO 2146•
FINANCING, DESIGN, CONSTRUCTIONAND OPERATION
OFA SORTSTATIONAND/OR MUNICIPAL SOLID WASTE
REDUCTION FACILITY FOR THE DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT,
COUNTY OF HAWAI 'I
Upon application, forms of proposal and specifications may be obtained from the above-named
J office.
Written questions or requests for clarification regarding any aspects of the above proposal must
be submitted to Ms. Barbara Bell, Director of Environmental Management, County of Hawaii, 25 Aupuni
Street, Room 210, Hilo, Hawaii 96720 (or via email: demdir@interpac), no later than November 2Z,
1004. On Tuesday, December 7, 2009, there will be tour of the Hilo site and a preproposal conference.
The tour wi/l meet at the Nilo Transfer Station Baseyard at 4:00 p.m. The conference will be held at 6.•00
p.m. in the County Council Chambers, 25 Aupuni Street, Hilo, Nawaii 96720. Attendance at bye tour
and/or ronference is not mandatory, but strongly recommended. Participants are encouraged to submit
written questions prior to the conference.
/Y~'/~r
WILLIAM TA BA
Director of Finance
Hawaii Tribune Herald
West Hawaii Today
Honolulu Star Bulletin
State of Hawai i ~ Procurement Notice System
Publication Date: October 29, 2004
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Harry Kim ~
Mayor Dixie Kaetsu
Managing Director
..:c..'•` Peter L. Hendricks
Depary Managing Director
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25 Aupuni Sfrect, Room 215 Hilo, Hawaii 96720-0252 (808) 961-8211 . Fax (808) 961-6553
KONA: 75-5706 Kuakini Highway, Suite 103 • Kailua-Kona, Hawaii 96740
(808) 329-5226 Fax (808) 326-5663
October 29, 2004
Re: Department of Environmental Management
Waste Reduction Technology Request for Proposal
I have said many times that if the solid waste situation in Hawaii County was not well on
its way to a long-term solution, my term as Mayor would be a failure. I am very hopeful
that the plans established will lead the County to a good and obtainable place.
This solicitation for proposals will ultimately lead to procurement of a comprehensive
solid waste facility. It will be a great stride toward long-lasting success in this azena.
We know that we must be clear in our thinking and planning, in asking for your services
before we will be successful in this large endeavor. It has taken much preliminary work
to get to this point. I hope you avail yourselves of our updated Integrated Solid Waste
Management Plan, the recent Environmental Impact Study and other background
information located on the County website.
I know all of you who are contemplating responding to our Request for Proposal are
professional and serious in your work. We are too. I want you to know that Hawaii
County is committed to a fair process in selecting a waste reduction technology process
that will be the envy of the state and more.
Thank you very much for your consideration of a partnership with the County of Hawaii.
Aloha,
l
any Ki
MAYOR
N SPECIFICATIONS N
1. GENERAL
The County of Hawaii is soliciting proposals to design, build and operate two facilities: One, the
Re-load building at the East Hawaii Regional Sort Station (EHRSS) and, two, a solid waste
reduction facility.
The County completed an Update to the Integrated Solid Waste Management Plan in December
2002. The plan allows for three technologies in the long-term, though no decisions have been
made yet. The complete text of the plan, with a 2001 waste composition analysis, may be found on
the County web site at http://co.hawaii.hi.us/directory/dir_envmng.htm.
The County completed an Environmental Impact Statement for the East Hawaii Regional Sort
Station, which may be found at the same location on the County web site.
The County Council adopted a Resolution to guide requirements of proposals, and any project,
associated with this Request for Proposals. It is Resolution 218-04, Draft 2. It is attached as
"Exhibit A" for reference.
The County of Hawaii is soliciting proposals for afull-service contract for the furnishing of all
necessary labor, equipment, materials, tools, supplies, accessories, and appurtenances to finance,
design, engineer, construct, test, operate, and maintain for twenty (20) years a Municipal Solid
Waste Reduction Facility which, when operating at the Guaranteed Minimum Capacities of
municipal solid waste specified in the Offeror's Proposal, will produce a marketable product. Only
offerors who have successfully operated at least one (1) commercial Municipal Solid Waste
Reduction facility which is of similar complexity for six (6) months prior to this RFP processing
twenty-five (25) or more tons per day of municipal solid waste or similar materials will be
considered.
A seven to ten (7-10) acre site at the East Hawaii Regional Sort Station facility, TMKs: 2-1-13:11;
142, 148, 150, 162, 163, 167, 168 (consolidation in process), will be leased to the successful
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 1 OF 22
OVERVIEW OF CONCEPTS OF THIS REQUEST FOR PROPOSALS (RFP)
• Proposed site is between the existing Hilo transfer station and the South Hilo landfill site.
• All options for processing different commodities, low tech and high tech, allowed and
encouraged.
• County will operate the scale house and collect tipping fees.
• Proposals need to include the hauling of any residual to Pu'uanahulu.
• Compliance with HRS 104 and 103-55 is mandatory. '
• Landfill diversion rates will be required at a minimum percentage for the first year, which
will rise each year up to a maximum of 80%. We are presently diverting about 17%-18°k of
the total waste stream.
• The contract term should be 20 years.
• Possible economic incentives for reaching beyond the required diversion rates would be
based on avoided costs. Penalties for lower diversion than required could be based on
County direct costs.
Landfill bans will be considered. Greenwaste and construction/demolition debris are
identified in the Update of the Integrated Solid Waste Management Plan as being useful to
ban from the landfill. It is impractical and undesirable to institute a ban without an
alternative in place, we will work with the contractor to implement bans as necessary and
desirable.
OVERVIEW OF REQUIREMENTS OF PROPOSALS•
• The facility needs to accept all waste or have a procedure for all waste that may
reasonably be expected to arrive at the facility.
• Any change to County policy or rules must be identified.
• Operations plan With commercial and residential traffic separation mandatory. Hauling to
Pu'uanahulu identified, if required.
• Integration of existing facilities at landfill and Hilo transfer station.
• Site safety plan.
• Facilities lay-out plan.
Hazardous waste screening program.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS PAGE 3 OF 22
• Equipment list.
• Labor list, by position.
• Pricing specifics, using forms provided in this RFP.
1.1 All such proposals shall be subject to this Request for Proposals, Specifications and Special
Provisions, all of which are attached hereto and by reference made a part hereof.
1.2 The "General Terms and Conditions for Goods and Services," including exhibits of appropriate
Contract and bond documents, dated July 1, 1994, shall be a part of any Contract entered into as a
result of this proposal. All proposers are responsible to be familiar with these general terms and
conditions, a copy of which is on file at the Purchasing Division and will be made available to any
interested person upon request at no charge. Where any conflict might appear, the Special
Provisions shall have precedence over the General Terms and Conditions and the Specifications of
this proposal shall have precedence over either.
1.3 The "General Requirements and Covenants." including exhibits published by the Department of
Public Works dated July, 1972, or the most current version, will apply to all aspects of Construction
related to this project. Where any conflict might appear, the General Terms-and Conditions for
Goods and Services, dated July 1, 1994, will have precedence over the General Requirements and
Covenants."
1.4 Special Advisory to Offerors: All offerors should be aware that no funds are currently budgeted for
this Request for Proposals and acceptance of any offer will be contingent upon receiving County
Council approval and budgeting of funds in future fiscal years. Offerors should also note that
proposals for waste reduction technology which total, over the life of the project, an estimated cost
exceeding $100.00 per ton of material accepted and processed have little, if any, chance of being
accepted.
2. SCOPE OF SERVICES
2.1 General Description - RFP's are being solicited for two separate and distinct phases which may be
awarded to the same or two different offerors. The frst phase will be to design, construct and
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS PAGE 4 OF 22
operate a reload facility for the purpose of reducing, recycling, reusing, etc. refuse prior to
landfilling in either Hilo, or, after Hilo has reached capacity, Puuanahulu in West Hawaii. The
second phase will be the design, construction and operation of a Municipal Solid Waste Reduction
Facility. Offerors may provide proposals for either or both, and may make acceptance of an award
of either contingent upon award of the other.
2.2 The County of Hawaii (County) currently anticipates that the South Hilo Sanitary Landfill (SHSL)
will reach its permitted capacity in 2006. The County anticipates that there shall be an interim
period prior to the closure of the SHSL and full operation of a Waste Reduction Technology (WRT).
In preparation of the forthcoming closure of the SHSL, the County recently completed design of the
East Hawaii Regional Sort Station (EHRSS). The EHRSS is comprised of four major elements: 1)
Residential Recycling & Reuse Center, 2) Recycling Processing Areas, 3) Reload Facility, and 4)
Scalehouse. A copy of the Final Environmental Impact Statement for Construction and Operation
of the EHRSS is available on the County's website at http://www.hawaii-
i county.com/env mng/ehrss.htm. EHRSS items 1) and 2) are anticipated to be constructed by
the County during 2005. Construction and operation of EHRSS items 3) and 4) may be included in
the WRT offeror's proposal. In lieu of items 3) and 4), the WRT vendor's proposal may also
include an offer to permit, design, and construct alternate reload and scalehouse facilities. A
separate cost breakdown shall be submitted for alternate facilities. Additionally, the WRT offeror's
proposal should include a separate per ton cost for operation of item 3). The County will operate
item 4), scalehouse.
2.2.1 Construction of EHRSS items 3) and 4) (or approved alternate facilities) shall be completed prior to
the closure of the SHSL and shall (at a minimum) be maintained during the interim period prior to
the closure of the SHSL and full operation of a WRT. Operation of item 3) (or approved alternate
facilities) shall include all associated Reload activities (or approved alternate activities) included in
the Draft EHRSS Operations Plan (including transport of solid waste to the West Hawaii Sanitary
Landfill in Pu'uanahulu). A copy of the Draft EHRSS Operations Plan is included as attachment to
this RFP, identified as Exhibit C.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 5 OF 22
2.2.2 Offerors may propose to design, build and operate a reload facility of their own design should that
be more advantageous to operate in conjunction with the Solid Waste Reduction Facility they are
proposing. The County currently has a complete set of specifications and blueprints for the reload
facility originally planned for the EHRSS, which are available upon request for anon-refundable fee
of $100.00 in the event the proposer would prefer to use the existing reload facility plans.
2.3 Specifications For Waste Reduction Technology Proposal
2.3.1 The system shall be capable of processing the Guaranteed Minimum Capacity which must be
accepted and processed at the facility.
2.3.2 The combination of equipment reliability, scheduled and estimated unscheduled downtime, use of
storage areas, maintenance philosophy, etc. shall be such that not more than twenty-five (25)
percent, by weight, of the Minimum Guaranteed Capacity is diverted to landfill disposal, including
any residues from the waste reduction process. If maintenance requires hauling municipal solid
' waste to a permitted solid waste facility, Offeror is responsible for trucking and tipping fees, and
proof of disposal.
2.3.3 The system shall be constructed, operated, and maintained in compliance with all applicable
federal, state, and local laws, ordinances, codes, regulations, and court orders concerning the
operation and maintenance of such facilities, including, but not limited to the following Hawaii
Administrative Rules, issued by the State Department of Health:
1. Chapter 54, Water Quality Standards
2. Chapter 55, Water Pollution Control
3. Chapter 58, Solid Waste Management Control
4. Chapter 59, Ambient Air Quality Standards
5. Chapter 60, Air Pollution Control
6. Chapter 62, Wastewater Systems
7. Chapter 68, Litter Control
2.3.4 Weigh Station. A fully furnished and equipped weigh station with asixty-foot (60') long truck scale
and accompanying scale house shall be included with the facility. The weigh station computer
shall be connected to and interface with the County's computer system for record-keeping, billing
and payment purposes. The computer and other control equipment needed for the scales will be
placed in the scale house. The Offeror will provide its own staffing for the scale house and the
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 6 OF 22
County may duplicate that staffing should the County desire. The Bidder will provide the computer
scale system according to the County's specification.
2.3.5 All processes and storage shall be contained within buildings.
2.3.6 All exterior conveyors are to be covered but accessible. All conveyors are to be complete with
dribble pans and chutes, scrapers, skirts, seals, etc., to contain all materials. Entry and discharge
points of all equipment, conveyors, etc., are to be provided with dust and odor control devices.
2.3.7 All equipment such as mixers, screens, and trommels, which in their operation generate dust and
odors, are to be totally enclosed and/or provided with an adequate odor and dust collecting system
to prevent the release of odors and dust to the surrounding areas.
2.3.8 All shredders or grinders are to be designed to minimize damage and downtime due to explosions
and fires.
2.3.9 Motor control centers located in areas that may be subject to dust conditions or exposed to
washdown operations are to be housed in individual rooms properly vented.
2.3.10 Odor control measures shall be capable of containment and odor elimination.
2.3.11 Provisions for detecting and alarming radioactive waste shall be provided.
2.3.12 The proposed waste reduction facility shall be capable of expansion to handle the future waste
projection included in Table 2.6 (Exhibit B) from the Final Environmental Impact Statement for the
Construction and Operation of the East Hawaii Regional Sort Station, dated February, 2004, which
may be found on the CountylDepartment website at httD://www.hawaii-
county.com/env mng/ehrss htm.
2.3.13 The "Prototype Contract for Construction of the Solid Waste Reduction Facility attached hereto as
"Appendex B" shall be considered a part of the specifications. Any variations, additions or
deletions to that prototype contract must be included in offeror's proposal as exceptions and clearly
labeled as such.
2.3.14 The "Prototype Contract for Operation of the Solid Waste Reduction Facility" attached hereto as
"Appendix C" shall be considered a part of the specifications. Any variations, additions or
deletions to that prototype contract must be included in offeror's proposal as exceptions and clearly
labeled as such.
2.3.15 A method of conflict resolution between Contractor and County for both Construction and
1 Operations of the Solid Waste Reduction Facility shall be established according to "Prototype
Agreement for Selection of and Resolution of Conflicts by Independent Third Party" attached
RFP 2146 H WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 7 OF 22
hereto as "Exhibit G" shall be considered a part of the specifications. Any variations, additions or
deletions to that prototype agreement must be included in offeror's proposal as exceptions and
clearly labeled as such.
3. INSTRUCTION TO PROPOSERS
3.1 TIME SCHEDULE: The following schedule consists of major events leading up to the selection of
the Contractor:
3.1.1 October 29, 2004: Date of Publication in the State of Hawaii Procurement Notice system and
Hawaii Tribune Herald, West Hawaii Today and Honolulu Star Bulletin Newspapers.
3.1.2 November 22, 2004: Submit written questions or request for clarification. All answers (if any
necessary) will be provided to all interested parties in the form of an addendum to these
specifications by December 14, 2004.
3.1.3 December 7, 2004: Tour of Hilo site at 4:00 p.m. and pre-proposal conference at 6:00 p.m. in the
County Council Chambers, 25 Aupuni Street, Hilo, Hawaii 96720. Attendance is not mandatory,
but highly recommended. Potential proposers are encouraged to submit written questions by the
November 22^d date to facilitate the conference. An addendum containing responses to previous
questions and content of questions and answers provided at the conference will be issued by
December 14, 2004.
3.1.4 December 21, 2004: Submit any additional written questions or requests for clarification, primarily
regarding any issues remaining after the December 14~ addendum. All answers (if any necessary)
will be provided to all interested parties in the form of an addendum to these specifications by
December 31, 2004.
3.1.5 January 21, 2005: Deadline for receipt of proposals.
3.2 AMBIGUITY, CONFLICT, DISCREPANCIES, OMISSIONS OR OTHER ERRORS IN THE
REQUEST FOR PROPOSAL: Any interested party who discovers any ambiguity, conflict,
discrepancy, omission or other error in the Request for Proposal shall notify the following IN
WRITING on or before November 22, 2004:
Ms. Barbara Bell, Director
1 Department of Environmental Management
25 Aupuni Street, Suite 210
Hilo, Hawaii 96720
email: cohdir@interpac.net
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 8 OF 22
3.2.1 If necessary, modifications or clarification will be made by issuing an addendum by December 14,
2004 ,and will be given by written notice to all parties who have been furnished the REQUEST
FOR PROPOSAL, without divulging the source of the request.
3.2.2 If any proposer fails to notify the County prior to the date and time fixed for submission of proposals
of an error in the REQUEST FOR PROPOSAL known to him, he shall submit the proposal at his
own risk; and if he is selected by the County, he shall not be entitled to additional compensation or
time by reason of the error or its later correction. The County may also modify the REQUEST FOR
PROPOSAL prior to the date and time fixed for submission of proposals by issuance of an
addendum to all parties who have received the REQUEST FOR PROPOSAL, or may issue
addenda after negotiations have begun with all proposers whose proposals remain under
consideration. All addenda will be numbered consecutively beginning with the number "1". It shall
be the responsibility of the proposer to assure all addenda have been received at all times prior to
the opening date and time.
3.3 INTERPRETATION OF PROVISIONS:
Notwithstanding any other provisions, if there is any doubt as to the interpretation of any of the
provisions herein, the proposer shall submit an inquiry IN WRITING as in Section 3.2 above.
An addendum will be issued as indicated above. Any question regarding the interpretation of any
provision after proposals have been opened andlor a Contract awarded will be subject to a ruling
of the Director of Finance, County of Hawaii, whose decision will be fnal. In addition, the parties
hereto agree that the Director shall have the sole power to decide and resolve matters which may
arise in the future and which are not covered in this proposal.
4. REQUIREMENTS AND PROCEDURES
In responding to the "REQUEST FOR PROPOSAL" the following shall be included as a minimum:
4.1 An original and six (6) copies must be submitted with the proposals as follows:
(a) Executive Summary
(b) Offeror's Qualifications -
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS PAGE 9 OF 22
(c) Offeror's Proposals
4.2 Executive Summary. The Executive Summary shall summarize the information contained in the
offeror's qualifications and proposals. Offerors may prepare the Executive Summary in the format
of their choice. The Executive Summary is to be limited to fifty (50) pages or less, including all
tables and graphics. The Executive Summary shall not contain any price, cost, or economic data.
The County assumes no liability for disclosure or use of confidential data presented in the
Executive Summary.
4.3 Offeror's Qualifications. A number of informative and qualifying items must be addressed in the
Offeror's qualifications in order for a submittal to be found responsive and acceptable. Informative
items are intended to provide general information only. Qualifying items will determine
acceptance. All items must be addressed in sufficient detail to be considered responsive.
Submittals which fail to be precise, factual and complete may be rejected. Items should be
addressed in the order listed to permit a methodical evaluation. Submittals not following this order
will be found deficient and may be rejected. Additional data presented in a brief and concise
manner may be included.
4.4 Informative Items.
4.4.1 Organizational Data
(a) Offeror's Name
(b) Offeror's Address
(c) Offeror's Telephone and Facsimile Numbers
(d) Offeror's Representative
(e) Organization Type (corporation, joint venture, etc.)
(f) Organization's Members (if applicable)
(g) Date Organization was Established
(h) Organization's Annual Report for the past three (3) years including audited
financial statements and resumes. Include all members of joint ventures, if
applicable.
4.4.2 Experience Data. Offeror should list and describe:
(a) Related projects the Offeror has been or is presently involved in and the nature of
this involvement.
RFP 2146 ti WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE SO OF 22
(b) Any project which the Offeror ever failed to complete in the past five (5) years and
the when, where, how, and why of such failure.
(c) Any officer or partner who in the past five (5) years failed to complete a contract
handled in his own name and the reason therefor.
(d) Any lawsuits in which the Offeror was or is involved within the past five (5) years
and the nature of such involvement.
(e) A discussion of any policies of the organization which could prevent or inhibit the
Offeror in any way from entering into along-term, full-service contract for the
facility.
4.4.3 Operational Data. Offeror should provide:
a) A brief description of the facilities it would propose to construct for the County of
Hawaii.
(b) A list of similar type facilities currently in operation and a description as to the
location and capacity of each as well as the number of years each has been in
operation.
(c) A description and discussion of the operation including major technical,
operational and maintenance considerations in its existing facilities and the
relationship to what is proposed for East Hawaii and the Island of Hawaii.
4.4.3.1 Alternate Proposals for the Re-load building should include the following:
(a) A brief description of the facilities it would propose to construct for the County of
Hawaii.
(b) A description and discussion of the operation including major technical,
operational and maintenance considerations in its existing facilities and the
relationship to what is proposed for East Hawaii and the Island of Hawaii.
(c) A narrative of how this works with the offeror's waste reduction technology
proposal.
4.4.3.2 Proposals for Waste Reduction Technology should include the following:
(a) A site plan showing the buildings, large processing equipment, buffer zones,
access, area for future expansion and internal roads for trucks and vehicles, and
employee/visitor parking areas; a description of the facilities and/or drawings
giving the sizes and locations of such items as offices, maintenance areas,
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 11 OF 22
employee locker rooms and lunch rooms, roads and parking areas, weighing
facilities and major process buildings; and general schematic plans showing the
layout of the vesselslequipment and their elevations. Drawings shall be eight and
one-half inches by eleven inches (8-112" x 11") or eleven by seventeen inches (11"
x 17") in size. Drawings shall be legible and drawn to scale or dimensions so that
overall floor areas, length, width, and heights of structures, lot acreage, etc., can
be determined.
(b) A narrative describing the system process. The narrative shall be supported by
material flow, mass and energy balance diagrams and other data as necessary to
demonstrate the Offeror's ability to process at the required system capacity. The
flow diagrams shall indicate mass and energy inputs and outputs; chemicals and
steam inputs and outputs; energy required for receiving, preparation and other
internal requirements; gas compression energy, if required; heating value of all
inputs and outputs; the expected analysis of all residues; and efficiency
assumptions for all energy conversion systems. Measurement units shall be
expressed in U.S. Customary Unit ("inch-pound system"), heat units in BTU's and
electric power units in watts or kilowatts. The narrative shall clearly describe the
system so that the performance expectations of the various components and the
overall system can be evaluated. For the municipal solid waste process, describe
the method of feeding waste into the process, those materials in the waste which
are unsuitable to process, the extent and method of preparation and the means for
removing and disposing of residues and unsuitable materials. The Offeror shalt
describe the individual equipment and shall document their adequacy for their
proposed function including capacity, reliability, power usage, manufacturer's
design data and locations where similar equipment are in use.
(c) A narrative description of the plant, on line, laboratory controls during processing
to comply with the requirement this RFP and any other federal, state, or local
requirement, including a description of hazards to operating personel and how
those hazards will be mitigated.
(d) A water budget diagram which shows the source, average flow rate, and, where
appropriate, quality and quantity of wastewater flows out of the facility including
RFP 2146 ~ WASTE REpUCTION TECHNOLOGY N SPECIFICATIONS ~ PAGE 12 OF 22
their disposal. Presentation of this information in tabular or narrative form is
acceptable.
Description and discussion of other environmental impacts and specifically air
quality impacts, required permits and the measures to be taken to address these
impacts and obtain the permits. Include a summary of discussions related to this
project with the State of Hawaii Department of Health, if any.
(f) Description of the operating hours and the frequency and duration of the times
when the processing facility is expected to be unable to process materials
because of the need for scheduled maintenance or other reasons and alternatives
for what will be done with the materials during such times. Include an annual
operating and maintenance schedule in graphical format. Clearly address
methods to be used to control corrosion from combusted gases.
(g) Description of the proposed beneficial uses of the final products and the benefits
• derived and its plans to develop diverse markets for final products to ensure its
long term, economic disposal including contingency plans to take care of changes
in the market place.
(h) Description of proposed changes to the specimen contracts which it requests to
negotiate with the County. Such changes shall not affect the County's business
and risk positions and shall be only to adjust the contracts for specific
requirements of the Offeror's process.
4.4.4 Financial Data. Offeror should discuss the history of its successes in financing projects of this size
and complexity and, additionally, its capability to:
(a) Meet daily operational contingencies specifically with respect to cash and working
capital.
(b) Survive future long-term contingencies based on net worth, profits and long-term
debt.
(c) Finance the facility within the time frame necessary to meet the project schedule.
4.5 Qualifying Items.
4.5.1 Process State of the Art. Offerors of Waste Reduction Technology Systems shall provide
documentation such as a brief synopsis of plans, specifications, operating records, sales records,
laboratory reports, etc., to demonstrate that the process being proposed is a commercially
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY N SPECIFICATIONS ~ PAGE 13 OF 22
operational, municipal solid waste processing facility. The minimum requirements to satisfy this
item are that:
(a) There exists at least one commercially operational waste reduction facility
processing municipal solid waste or similar materials in which the Offeror or its
technical members have been substantially involved. Names, addresses, and
phone numbers of persons that can be contacted at the facility or at the agency
responsible for the facility shall be provided.
(b) Such facility has been operated successfully for the past six (6) months and has
been fully operational eighty five percent (85%) of this time.
(c) The facility has accepted and processed municipal solid waste or similar materials
at rate of at least twenty-five (25) tons per day in the past six (li) months.
(d) The facility without major modification or equipment changes, other than for the
acceptable application of good engineering practice for scale up or scale down,
would substantially represent the system proposed for East Hawaii.
' (e) The product produced at the facility has in the past six (6) months been
marketable and resulted in the beneficial reuse of the processed materials and/or
energy. The Offeror shall provide descriptions and documentation of the beneficial
reuse such as, operating reports, weight records, names of purchasers, revenues
from sales, etc. in sufficient detail to demonstrate fulfillment of this requirement.
4.5.2 Contract Guarantees. Offeror shall provide a summary of performance and other guarantees (in
addition to required performance bonding) which will be provided for the project. The
minimum requirement to satisfy this item is that the offeror demonstrate its or its parent
company's ability to provide guarantees for facility capacity, as specified in the contract
documents with penalties for non-performance and termination.
4.5.3 Organization and Personnel.
(a) Designing and Constructing: The minimum requirement to satisfy this item is that
the offeror has available key personnel committed to the project to accomplish the
engineering design, permitting and construction. Such personnel shall have had
prior experience designing and constructing an operational processing facility of
similar process complexity and of the required minimum size. In addition, the
offeror shall enlist the services of an environmental consultant with recent
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 14 OF 22
successful experience in obtaining environmental permits, including air permits, in
the State of Hawaii. The offeror shall submit resumes and also describe the
organizational structure which will be established to coordinate the activities of
such personnel.
(b) Operating: The minimum requirement to satisfy this item is that the Offeror has
available key personnel who will be committed to the project during the operations
period and who have had prior experience with an operational processing facility
of similar process complexity and size. The Offeror shall submit resumes and also
describe the organizational structure which will be established to coordinate the
activities of operating personnel.
(c) Marketing of recyclablelreuseablelresidual bi-products: The Offeror shall identify
sources of all marketable products from the facility which constitutes twenty (20)
percent or more of the value included for beneficial reuse of the processed
materials. As a condition of entering into a contract, the County will require that
the offeror furnish letters of intent to purchase such products at the time they
become available in the quantities projected from firms recognized to be reliable
and likely remain viable business entities during the life of the contract(s).
4.5.4 Financing Data.
(a) Proposal bond: All proposals shall be accompanied by a bid security bond in the
amount of $50,000.00 meeting the requirements of Section 103D-323, HRS.
Such bid security shall be forfeited in the event that the County indicates a
willingness to accept an offer essentially equal to that offered in proposer's best
and final offer. In the event the County requires additional modifications as a part
of the negotiation process either before or after an award is made, the failure of
such negotiation shall not be cause for the proposal bond to be forfeited.
(b) Performance Bond: As a condition of entering into a contract, the successful
proposer must furnish a contract performance and payment bond in an amount
7 equal to 100% of all construction proposed in conformance with the requirements
of Section 103D-324, HRS. Additionally, a performance bond conforming to the
requirements of Section 103D-324 in the amount of $5,000,000.00 must be
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 15 OF 22
furnished to be in full force and effect during the entire contract period covering
operations of the facility. Such bond must be written such that the entire amount
shall be paid to the County immediately upon the failure of the Contractor to
operate the facility as required by the contract..
(c) Financial Stability: The minimum requirement to satisfy this item is that the Offeror
submit its or its members' Securities and Exchange Commission (SEC) Form 10K
filed for each of the past three (3) years. Offerors who have not filed SEC
Form 10K shall submit their financial data in the format and detail of that required
in the SEC Form 10K. Each Offeror's SEC Form 10K shall be evaluated in detail
to determine acceptability. The County recognizes the difficulty of establishing
minimum requirements for determining an organization's financial stability on a
totally quantitative basis from the data in the SEC Form 10K.
(d) If an Offeror is not an individual corporation but a business entity comprised of two
or more members whose collective experiences enable the entity to meet the
minimum qualification requirements of this RFP such Offeror shall submit the
binding agreement that enable the members to represent themselves as an entity.
(e) The Offeror shall provide a letter of reference from a_ nationally recognized
financial institution stating that they will provide short and long term financing
specifically for the Offeror's proposed facility. Reliance on Special Purpose
Revenue Bonds or other government backed security will not be used in
evaluating project costs.
4.6 Offeror's Proposal. In order to be found acceptable Offeror's proposal must address and be in
conformance with the Project Specifications and Required Items as provided in the following
sections. Additional data presented in a brief and concise manner may be included. Offeror shall
submit its responses in the order listed to permit a methodical evaluation. Submittals not following
this order may be found deficient and may be rejected.
4.7 Cost of Services: The Proposer shall complete and submit the attached Proposal Price Form and
List of Subcontractors with the proposal. In addition, the Proposer shall complete and submit a
detailed pro-forma budget for the proposed activities.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 16 OF 22
4.8 Signature/Letter of Transmittal: The proposal shall be accompanied by a letter of transmittal which
should include as a minimum, the name of the individual designated as the authorized
representative(s) of the firm and a summary of key points of the proposal. If the Proposer is a
corporation, the legal name should appear on the letter and the letter should be signed by an
officer or officers authorized by the corporation. If the Proposer is a partnership, the true name of
the firm is required on the letter, and the letter should be signed by a partner or partners authorized
to sign such documents. If an agent is used, a power of attorney or equivalent must accompany
the proposal. The name and title of the individual signing must be typed below the signature. A
company signature is not acceptable.
4.9 Submission of Proposal. The proposal shall be submitted as follows:
a. Number of copies: One (1) original and six (6) copies of the proposal, typed and
double-spaced.
b. Proposal Preparation Cost: Cost for developing proposals is entirely the
responsibility of the Proposer and shall not be charged to the County.
c. Submission Address: The proposal along with any required submittals and
transmittal letter shall be submitted NO LATER THAN 4:30 P.M., FRIDAY
JANUARY 21. 2005, to:
Director of Finance, County of Hawaii
25 Aupuni Street, Room 118
Hilo, Hawaii 96720
4.9.1 Proposals should be mailed or delivered in person to the above address, in either the envelope
provided with this proposal or packaging or proposer's preference, provided that the RFP number,
title, due date and proposer's name are clearly printed on the outside.
4.9.2 All proposals received will be time-stamped and deposited in the locked bid box of the Purchasing
Division until the deadline. Proposals that are mailed in must arrive in the Purchasing Division
before the time deadline; proposals received after the deadline may be returned unopened to the
sender unless conclusive evidence is available that the intact proposal was in transit and
unavoidable delayed by factors beyond the control of the proposer. The proposer shall be solely
responsible for the timely arrival of its proposals. Proposals will not be publicly opened, nor
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 17 OF 22
will the names of individuals or firms who have submitted proposals be made public until
such time as an award is made or all proposals rejected. After award, all proposals shall be
public information except proposal sections containing proprietary information or other information
not appropriate for public perusal which shall be sealed by the proposer in a separate envelope
marked "PROPRIETARYINFORMATION".
4.9.3 Proprietary information should be limited to unique systems and procedures, confidential financial
information regarding the proposer, clients and/or sub-contractors and certain references. All
proprietary information must be sealed in separate envelopes with the outside clearly marked as to
the name of the proposer and the nature of the contents. Proposals which mark all pages as
confidential or proprietary will not be considered under any circumstances. The County of Hawai i
further reserves the right to use any ideas presented in any proposal or as a result of any
negotiation, unless marked "PROPRIETARY", whether from a successful or rejected proposal.
1 5. WITHDRAWAL OF PROPOSALS
A Proposer may withdraw his proposal by submitting a written request to the Director of Finance
any time prior to proposal deadline. After the proposal deadline, proposals may be withdrawn and
proposal bonds returned only with the written approval of the Director of Finance and only upon
clear evidence that the proposal offered has little if any possibility of being acceptable under any
circumstances.
6. REDECTION OF PROPOSALS
The Director of Finance reserves the right to accept or reject any or all proposals and to waive any
defects in said REQUEST FOR PROPOSAL if deemed to be in the best interest of the County.
7. CONTACT FOR INFORMATION
If the Proposer requires additional information from the County, arrangements shall be made
through Ms. Barbara Bell, Director, Department of Environmental Management, 25 Aupuni Street,
Room 210 Hilo, Hawaii 96720; telephone number: (808) 961-8083; email: cohdem@interpac.net.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 18 OF 22
However, all proposers are cautioned that no verbal information may 6e considered in providing a
rp
onosal• Only written addenda in response to written questions or comments will be considered
as alteration to this request for proposal.
8. METHOD OF SELECTION:
5.1 A Review Committee, as determined by the Director of Environmental Management, will review
the Proposal(s) submitted by each firm. All proposals for the Solid Waste Reduction Facility will
first be evaluated using a two tiered evaluation process. The first level consists of the following
qualification criterion. Each element is valued equally at 331/3% of the total score.
a. The offeror's experience on projects of similar size and complexity,
b. The offeror's ability to finance the proposed facility(s), and
c. The offeror's ability to meet the qualifying items as provided for in Section 4.5 on page 14 of
these specifcations.
5.2 Once the minimum qualifications have been demonstrated, a list of "Priority-Listed Offerors" will
be established. The County will then evaluate on the second level of criterion. Each of the
following elements is valued equally at 33 1/3% of the total score.
a. Cost to the County as provided for in the offeror's pricing proposal. Total cost will be measured
per ton. There may be different prices for processed material, diverted material and still
another cost for residuals, which become landfilled. The proposer is responsible for identifying
quantities of the above categories and coming to a total cost per ton to handle, process, or
dispose of all solid waste coming to the East Hawaii facility. The cost to the County of
$1001ton, or less, is to be considered a maximum. Any proposals with higher costs than this
number have little if any chance of being considered.
b. The proposal and how well it matches the County's existing situation and the County's goals of
50% landfill diversion (by weight) by 2008 and 80% landfill diversion (by weight) by 2013.
These goals are expanded upon in the Update to the Solid Waste Management Plan, dated
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 19 OF 22
December 31, 2002, and found on the County Website at http://www.hawaii-
county.comlenv_mngliswmp.htm
~G The proposal and how well it meets all technical requirements as laid out in Section 4,
beginning on page 9 of these specifications.
8.3 Upon selection of a proposed contractor for the Solid Waste Reduction Facility, if that Contractor
has included in its proposal an offer to construct and operate the reload facility, the County
reserves the right to accept that proposal as well, regardless of what other proposals may have
been received for that facility. Proposals may make acceptance of an award for either facility
contingent upon award of the other or may offer only one of the facilities.
8.4 In the event the proposed contractor for the Solid Waste Reduction Facility did not provide an
offer to construct and operate the re-load facility, or the County deems that the offer presented is
' not acceptable or may not be in its best interest for any reason, the County will then evaluate all
other proposals for the reload facility according to the following criteria:
(a) Total Cost to the County as provided for in the offeror's pricing proposal for both
construction and operations based on a twenty year life cycle. A Net Present Value
method based on a time value of 5% will be used in evaluation and represent 70% of the
evaluation.
(b) Offeror's past experience in construction and/or operations of similar or equal facilities,
representing 10% of the evaluation.
(c) Offeror's financial condition and perceived ability to undertake the endeavor representing
10% of the evaluation.
(d) References and record of success in previous projects of any nature, representing 10% of
the evaluation.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 20 OF 22
8.5 SELECTION
(a) A County panel shall review the proposals submitted.
(b} Priority Listed Offerors will be established per section 8.1.
{c) Discussions, if any, with offerors will be limited to only priority listed offerors.
(d) If there are more than three proposals qualified as priority listed offers, the County
may rank the proposals and limit discussions, if any, to at least three offerors who
submit the highest-ranked proposals. Offerors should be aware that the County
might choose not to conduct discussions and may award the Contract based on
acceptance of the most favorable initial proposal.
{e) If deemed appropriate or necessary by the panel, the panel shall issue priority-
; listed offerors a request for best and final offers. Such request shall be in writing
and may include information unique to each proposal such as particular areas that
should be improved to increase the likelihood of an award.
(f) Award, if any, shall be made to the responsive and responsible offeror whose offer
the Contracting Officer deems most advantageous to the County, considering the
evaluation criteria specified herein.
(g) The County shall then negotiate a contract with the selected offeror, based on the
prototype contracts or any other factors of concern..
(h) The County of Hawai i further reserves the right to use any ideas presented in any
proposal or as a result of any negotiation, unless marked "PROPRIETARY",
whether from a successful or rejected proposal.
RFP 2146 ~ WASTE REDUCTION TECHN040GY ~ SPECIFICATIONS ~ PAGE 21 OF 2:
9. AWARD
Award of the project(s) may be made to one or more than one Proposer, if it is determined to be in the best
interest of the County.
10. TERMS OF THE CONTRACT•
The terms and conditions shall be set forth in the award. If the terms are not agreeable to the
successful Proposer and if no agreement can be reached by both parties, the award may be
dissolved without penalty to either party, provided that should the County be willing to accept an
offer essentially equal to that offered any time up to and including the "best and final; offer", the
failure of the offeror to enter into such a contract shall be deemed sufficient reason for the forfeiture
of the proposal bond.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIFICATIONS ~ PAGE 22 OF 22
N SPECIAL PROVISIONS N
1. PROPOSAL ACCEPTANCE/RELECTION.• The County reserves the right to reject any
and all proposals and to accept the proposals in whole or in part as best suited in the
interest of the County, giving due consideration to price, quality of product and proven
dependability and ability of each proposer with respect to ability to serve the County.
2. DURATION OF CONTR.4CT.• Contract(s) shall be effective upon Notice to Proceed for
a period defined within the Contract(s). The Contract(s) may be extended for an
additional period of up to 180 days, at the prices established in the original proposal.
3. DEVIATIONS.' The Director of Finance reserves the right to waive and/or accept any
minor deviations from the specifications, if in his opinion, such waiver will be in the best
interest of the County and that such waiver shall not affect in any way the standards of
performance, operations, capacities or quality of the equipment offered.
4. PROPOSAL RECEIPT.• All proposals received will be time-stamped and deposited in the
locked bid box of the Purchasing Division until the deadline for receipt. Proposals that
are mailed in must arrive in the Purchasing Division before the date and time of
deadline; proposals received after the deadline may be returned unopened to the sender
or accepted if no unfairness to any proposer will result. The proposer shall be solely
responsible for the timely arrival of its proposal. Prooosa/s wi// not be opened oub/ic/v
5. TAX CLEARANCE.• All successful proposers, including out-of-state proposers, must
apply to the Hawai' i State Tax Office and the Internal Revenue Service in conformance
with HRS, 103-53, for a tax clearance prior to a Contract being issued. This being a
price-term agreement, no clearance will be required with the final payment. In the
event an apparent successful proposer is unable to furnish appropriate certificates within
ten (SO) calendar days of being requested to do so, the County will proceed to award to
the next most attractive proposer who shall furnish said certificates. It is not required.
but stronoly suooested that orooosers furnish tax c%arances with their oroonsa/s
6. PAYMENT.' Payment will be made as soon as practical in the normal course of business
upon proper invoicing and satisfactory delivery of goods and/or services. Invoices
should be mailed or delivered to the Department of Environmental Management at 25
Aupuni Street, Hilo, Hawai' i 96720.
7. PROTESTS AND FORUM SELECTION: Any protest regarding procurement law or
procedure shall strictly follow the procedure described in Chapter 126, Hawai' i
Administrative Rules, Department of Accounting and General Services, Subtitle 11,
Procurement Policy Board. All protests must be filed in writing to Mr. William Takaba,
Chief Procurement officer, County of Hawai' i. It shall be the responsibility of any
protester to review all public documents relating to this IFB or RFP and his or any other
vendor's Contract award WITHIN FIVE (S) DAYS of the date the information or action,
which is the basis of the protest, became available for public inspection and file all
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 1 OF 11
protests within that period. Any protest regarding the content of this solicitation must
be properly filed prior to the date set for the receipt of offers. While the County may
make efforts to notify all participants of awards, failure to receive such notification shall
not relieve any aggrieved bidder of their responsibility of reviewing public records on a
timely basis, and filing their protest WITHIN FNE (5J DAYS of the date a "Notice of
Award" is posted on the bulletin board in the Purchasing Division lobby area, Room 118,
25 Aupuni Street, Hilo, Hawai' i.
No other action or proceeding involving this Contract shall be commenced by either
party except in the Circuit or District Courts of the Third Circuit, County of Hawai' i,
State of Hawai' i; nor shall any action commenced in such court be removed or
transferred to any other State or Federal Court.
8. INDEPENDENT CONTRACTOR.' The Contractor shall perform the Contract as an
independent Contractor and shall indemnity and save the County and its officers and
employees harmless from any and all deaths, injuries, losses and damages, suits, action
and liability therefor, caused by error, omissions or negligence in the pertormance of the
Contract by the Contractor or his subcontractors, agents and/or employees, until such
time as action against the Contractor for death, injuries, losses and damages is barred
by the provisions of Chapter 657, HRS, as amended, relating to limitations of actions.
9. LAWS AND REGULATIONS.• The Contractor shall keep himself fully informed of all
laws, ordinances, codes, rules and regulations, governmental general and development
1 plans, setback limitations, rights-of-way, and all changes thereto, which in any manner
affect the contract and the performance thereof, including but not limited to:
A. All Sections of the Hawai' i County Charter and Hawai' i County Code.
B. Chapters 103 and 103D, HRS, as amended, relating to expenditure of public
money and procurement.
C. Chapter 321, HRS, as amended. Relating to Health Department.
D. Chapter 376, HRS, as amended, relating to industrial safety.
E. Chapter 378, HRS, as amended, relating to fair employment practices.
F. Chapter 386, HRS, as amended, relating to worker's compensation.
The Contractor shall comply with all such present laws, ordinances, codes, rules and
regulations, including the giving of all notices necessary and incident to the proper and
lawful prosecution of the work, and all changes thereto. If any discrepancy or
inconsistency is discovered between the Contract and any such law, ordinance, code,
rule or regulation, the Contractor shall forthwith report the same in writing to the
Officer-in-Charge.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 2 OF it
10. TIME OF PERFORMANCE OF CONTRACT.• Time is of the essence. Performance of
the services under the Contract shall be commenced on the commencement date
designated in the Notice to Proceed and the services as required shall be completed
within the number of calendar days specified.
11. DELAY IN PERFORMANCE OF CONTRACT.• If any delay in the performance of the
services under the Contract occurs as a result of unforeseeable causes beyond the
control and without the fault or negligence of the Contractor, including but not limited
to, acts of God, acts of the public enemy, acts of the County with respect to the
Contract, acts of another Contractor in the pertormance of a Contract with the County,
fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually
severe weather, or delays of subcontractors or suppliers arising from unforeseeable
causes beyond the control and without the fault or negligence of both the Contractor
and such subcontractors or suppliers, then the Contractor shall be granted an extension
of the time for pertormance corresponding to the delay. Is as a result of the delay
completion of pertormance within the extended time would cause undue hardship to the
Contractor, the Director may, in his discretion, grant a further extension of the time for
performance. No extension of time, however, shall be granted unless a written
application therefor stating in detail the cause or causes of delay is filed by the
Contractor with the Officer-in-Charge WITHIN TEN (20) CALENDAR DAYS after the
commencement of the delay. The number of days of each extension of time shall be
determined by the Director upon the recommendation of the Officer-in-Charge. No such
extension shall be deemed a waiver of the right of the County to require the completion
of the services under the Contract within the time required herein as so extended by the
specific terms of such extension or extensions, nor a waiver of the right to terminate the
Contract for any other or additional delay not covered by the specific terms of such
extension or extensions.
12. PROSECUTION OF THE WORK.• The Contractor shall be available upon reasonable
demand to discuss the progress of the services being performed under Contract. All
questions arising during the performance of the Contract which must be resolved by the
Director or Officer-in-Charge shall be brought to their immediate attention.
13. AUTHORITY OF THE OFFICER-IN-CHARGE AND DIRECTOR: Any question or
dispute concerning any provision of the Contract which may arise during its performance
shall be decided by the Officer-in-Charge. The decisions of the Officer-in-Charge shall
be final and binding upon all parties unless the same is fraudulent or capricious or
arbitrary or so grossly erroneous as necessarily to imply bad faith or is not supported by
substantial evidence, provided that decisions on questions or disputes relating to
acceptance of the services performed under the Contract, suspension or termination of
the Contract, extension of time, reduction or increase in the compensation of the
Contractor and payment shall become final and binding upon all parties only upon
approval of the Director, and provided further that nothing herein shall be construed as
making final and binding any decision of the Officer-in-Charge and/or Director on a
question of law. Pending final decision of any dispute or question, the Contractor shall
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 3 OF it
proceed diligently with the performance of services under the Contract in accordance
with the decision of the Officer-in-Charge and/or Director.
14. COOPERATION BY THE COUNTY.' The County shall, without cost to the Contractor,
through the Officer-in-Charge, cooperate fully with the Contractor and will promptly
place at the disposal of the Contractor all available pertinent information which the
County may have in its possession. The County will certify to the accuracy of certain
information in writing whenever it is possible to do so. The County does not represent
that other information not certified as accurate is so and takes no responsibility therefor
and the Contractor shall rely on such information at his own risk.
15. REVIEW BY THE COUNTY.• The County shall review all submittals and other work and
data required to be made by the Contractor and reject or approve such submittals in
their entirety or approve the same subject to such deletions, additions and revisions as
the County may deem necessary and proper. In submittals specified in the special
provisions, all items not required by the County to be deleted, added or revised after
review by the County and not defective by reason or error, omission or negligence on
the part of the Contractor, his subcontractor, agents or employees shall be deemed to
have been approved.
16. COMPENSATION.• The Contractor shall be paid the amount stated in the written
agreement or the same determined in accordance with the special provisions, whichever
is lower, less any reduction in compensation and plus any increase in compensation
pursuant to paragraph 19 of these Special Provisions, as full compensation for the
performance of the services under the Contract.
17. ABANDONMENT OF THE PROJECT' DEATH OR DISABILITY OF CONTRACTOR: In
the event the County terminates the Contract because it wishes to abandon, defer,
restudy or revise the project, or in the event the Contractor, in the case of an individual,
dies or becomes physically or mentally disabled, the Contractor or his estate shall be
compensated in the same proportion of the compensation under the Contract as the
services pertormed bear to the services to be performed under the Contract.
18. PROGRESS PAYMENTS.• The Contractor's compensation shall be paid in periodic
progress payments only if specifically called for by a separate schedule in the Contract
or Agreement. In the event there is no specific schedule, payment shall be in the
normal course of business following the proper completion of all work, terms and
conditions of the Contract.
19. REDUCTION OR INCREASE IN COMPENSATION.• The compensation of the
Contractor shall be reduced whenever modification of the Contrail or designs and plans
pursuant to paragraph 20 of Special Provisions reduce the services to be performed by
the Contractor.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 4 OF 11
The compensation of the Contractor shall be increased to reimburse him for increased
costs to perform the services under Contract if performance of the services is delayed
for more than six (6) months by an act or omission of the County. No such
reimbursement, however, shall be made unless he files a written application therefor
with the Officer-in-Charge within thirty (30) calendar days after termination of the delay.
In addition, the compensation of the Contractor shall be increased whenever
modification of the Contract pursuant to paragraph 20 of Special Provisions requires the
Contractor to perform services not required under the Contract and whenever
modification of designs and plans or studies is required pursuant to paragraph 20 of
Special Provisions after the designs and plans or studies have been approved by the
County. For each such modification and each modification reducing the services to be
performed by the Contractor, the compensation of the Contractor shall be increased or
reduced in accordance with the supplemental agreement or if no supplemental
agreement has been entered into, by an amount equal to the sum total of the following:
(a) Wages of employees actually engaged in the services required by the
modification and the salary cost of principals when actually engaged in such
services in the case of an increase in compensation or the wages of employees
and the salary cost of principals who would have been so engaged in the case of
a reduction in compensation;
(b) One hundred fifty percent (150%) of (a) for all other overhead, including bonus
allowances, cost of supplies used, cost of transportation within the County of
' Hawai' i required for the project and profit; and
(c) Other direct costs, including the cost of transportation to and from destinations
outside of the County of Hawai' i and long distance telephone calls and/or data
transmission costs; and
(d) The State of Hawai' i General Excise Tax payable by the Contractor on (a), (b),
and (c).
20. MODIFICATIONS OF CONTRACT.' The County may at any time make such
modifications in the contract as it deems necessary and advisable. Such modifications
shall be made by a supplemental agreement in writing or by written order of the
Director; provided that modifications by such a written order shall be limited to
modifications in the scope of services; and provided further that modifications involving
no reduction or increase in compensation of the Contractor may be made by written
order of the Officer-in-Charge.
Upon receipt of a written order, the Contractor shall proceed with the modification as
ordered. If the Contractor does not agree with any of the terms or conditions of or with
the amount of the reduction or increase in compensation provided for in the order, he
shall file with the Officer-in-Charge a written protest setting forth his reasons in detail
within ten (10) ca/enda~ days after receipt of the order. The protest shall be disposed of
pursuant to the provisions of paragraph 13, AUTHORITY OF THE OFFICER-IN-CHARGE
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 5 OF 11
AND DIRECTOR. Failure to file such protest within the time specified shall constitute
agreement on the part of the Contractor with the terms, conditions and amount in the
order.
In the event the Contractor for reasons related to safety does not agree with and
refuses to proceed with the modifications required by the County in the written order,
the Director may allow the Contractor to withdraw from the Contract without breach,
provided the Contractor files with the Director a written protest setting forth his reasons
in detail within ten (10) ca/endar days after receipt of the order. If withdrawal is
allowed, the Contractor shall be compensated in the same proportion of the
compensation services to be performed under the Contract.
21. ASSIGNMENT OF MONEY DUE OR PAYABLE.• Assignments of money due or to
become payable to the Contractor under the Contract shall not be valid without the prior
written consent of the Director. The rights of the assignee to moneys due or to become
due to the Contractor shall be subject to paragraph 25 of Special Provisions.
22. ACCEPTANCE AND FINAL PAYMENT.• Final payment will be made only after the
issuance of a notice of final approval and acceptance by the Director advising the
Contractor of the satisfactory fulfillment of the terms of the Contract. This being a price
agreement, no certificate from the Director of Taxation, as provided in Section 103-53,
HRS, will be required. Acceptance by the Contractor of the final payment shall
1 constitute payment in full for all services performed under the Contract.
23. RIGHT OF THE COUNTY TO TERMINATE.• The County shall have the right to
suspend performance of the services under the Contract or terminate the Contract in
whole or in part at any time by written notice to the Contractor. Upon termination, all
data, plans, specifications, reports, estimates, summaries, completed work and work in
progress and such other information and materials as may have been accumulated by
the Contractor in the performance of his services shall, in the manner and to the extent
determined by the Officer-in-Charge, become the property of and be delivered to the
County. If the termination is for reasons other than default of the Contractor as
provided in paragraph 24, the Contractor shall be compensated in accordance with
paragraph 19.
24. TERMINATION BEG4USE OF CONTRACTORS DEFAULT.• The County shall have the
right to enter into a new Contract with another Contractor and pay a reasonable
compensation for such services as may be necessary to properly complete the services
under the Contract if it terminates the same because the Contractor:
A. Fails to begin work under the Contract at the time required; or
B. Is unnecessarily delaying the performance of the Contract or any part thereof; or
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 6 OF 11
C. Is failing to perform the Contract with sufficient or adequate personnel,
equipment or materials or is not making sufficient progress to ensure the
completion of the Contract within the time specified; or
D. Fails to perform the Contract in accordance with direction of the Officer-in-
Charge; or
E. Discontinues performance of the Contract; or
F. Fails to re-commence performance of the Contract within a reasonable time after
service of a written order to do so if the performance had been suspended; or
G. Becomes insolvent or is declared bankrupt or commits any act of bankruptcy or
insolvency; or
H. Allows any final judgment to stand against him unsatisfied for a period of ten
(10) calendar days; or
I. Makes an assignment for the benefit of creditors; or
Fails to pay for all labor, tools, materials and equipment; or
K. Has abandoned the Contrail; or
L. Violates or fails to comply with any of the terms, covenants and conditions of the
Contract.
The fee of such other Contrailor shall be paid from any unexpended amount of the
compensation under the contract. Should the compensation of such other Contractor
exceed such unexpended amount, then the Contractor shall reimburse the County for
the difference as part of the damages caused by Contractor's default. After payment of
the compensation of such other consultant, any remaining unexpended amount of the
compensation payable under the Contract shall be paid to the original Contractor.
The provisions of this subsection shall not apply if the Contractor is an individual and the
default is due to his death or mental or physical disability.
25. AUTHORITY TO WITHHOLD MONEY DUE OR PAYABLE.• The County may withhold
such amounts from the money due or to become payable under the Contract to the
Contrailor, or any assignee under paragraph 21, as may be necessary to protect the
County against liability or to satisfy obligations of the Contractor to the County and to
employees, subcontractors and material men who have performed labor or furnished
material and equipment under the Contrail and may make such payments from such
amount as may be necessary to discharge such obligations and proteil the County.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 7 OF li
26. REMEDIES NOT EXCLUSI~E.• The express provision herein of certain measures which
may be exercised by the County for its protection shall not be construed to preclude the
County from exercising any other or further legal or equitable right to protect its
interests.
27. SERVICES.• It is understood and agreed that any services to be provided in accordance
with the terms of this Contract may be terminated immediately, in whole or in part,
upon a finding by the County that these services must be provided by public employees,
pursuant to Civil Service Laws or that such services will be discontinued. It is further
understood, that should such a finding be made, the County will not be liable under this
Contract for any resulting damages, and such a termination will not be considered a
breach of this Agreement.
28. CONSTRUCTION OF CONTRACT: The masculine shall be deemed to embrace and
include the feminine and the singular shall be deemed to embrace and include the
plural, whenever required in the context of the Contract.
29. RESPONSIBILITY OF OFFERORS Offeror is advised that if awarded a contract
under this solicitation, Offeror shall, upon award of the contract, furnish proof of
compliance with the requirements of §3-122-112, HAR:
1. Chapter 237, tax clearance;
2. Chapter 383, unemployment insurance;
3. Chapter 386, workers' compensation;
4. Chapter 392, temporary disability insurance;
5. Chapter 393, prepaid health care; and
6. One of the following:
a. Be registered and incorporated or organized under the laws
of the State (hereinafter referred to as a "Hawai' i
business'; or
b. Be registered to do business in the State. (hereinafter
referred to as a "compliant non-Hawai~ i business's.
Refer to the Method of Award provision below for instructions on furnishing the
documents that are acceptable to the State as proof of compliance with the
above-mentioned requirements.
30. METHOD OFAWARD.
The terms and conditions shall be set forth in the award. If the terms are not
agreeable to the successful Proposer and if no agreement can be reached by
both parties, the award may be dissolved without penalty to either party.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 8 OF 11
Reference Responsibility of Offerors in §3-122-112, HAR. Offeror shall produce
documents to the procurement officer to demonstrate compliance with this
section.
HRS Chanter 237 tax clearance requirement for award and final
Davment. Instructions are as follows:
Pursuant to §103D-328, HRS, successful Offeror shall be required to submit a tax
clearance certificate issued by the Hawai' i State Department of Taxation
(DOTAX) and the Internal Revenue Service (IRS). The certificate is valid for six
(6) months from the most recent approval stamp date on the certificate and
must be valid on the date it is received by the purchasing agency.
The tax clearance certificate shall be obtained on the State of Hawai' i, DOTAX
TAX CLEARANCE APPLICATION Form A-6 (Rev. 2003) which is available at the
DOTAX and IRS offices in the State of Hawai' i or the DOTAX website, and by
mail or fax:
DOTAX Website (Forms & Information): htto://www.state.hi.us/tax/alohalist.html#a
DOTAX Forms by Fax/Mail: (808) 587-7572
1-800-222-7572
Completed tax clearance applications may be mailed, faxed, or submitted in
person to the Department of Taxation, Taxpayer Services Branch, to the address
listed on the application. Facsimile numbers are:
DOTAX: (808) 587-1488
IRS: (808) 539-1573
The application for the ClearanC2 is the responsibility of the Offeror, and must
be submitted directly to the DOTAX or IRS and not to the purchasing agency.
Contractor is required to submit a tax clearance certificate for final payment on
the contract. A tax clearance certificate, not over two months old, with an
original green certified copy stamp, must accompany the invoice for final
payment on the contract.
HRS Chapters 383 (Unemployment Insurance), 386 (Workers' Compensation),
392 (Temporary Disability Insurance), and 393 (Prepaid Health Care)
requirements for award. Instructions are as follows:
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 9 OF it
Pursuant to §103D-310(c), HRS, successful Offeror shall be required to submit an
approved certificate of compliance issued by the Hawai' i State Department of
Labor and Industrial Relations (DLIR). The certificate is valid for six (6) months
from the date of issue and must be valid on the date it is received by the
purchasing agency.
The certificate of compliance shall be obtained on the State of Hawai' i, DLIR
APPLIG4TION FOR CERTIFICATE OF COMPLIANCE WITH SECTION 3-122-112,
HAR, Form LIR#27 which is available at www.dlir.state.hi.us/LIR#27, or at the
neighbor island DLIR District Offices. The DLIR will return the form to the Offeror
who in turn shall submit it to the purchasing agency.
The application for the certificate is the responsibility of the Offeror, and must be
submitted directly to the DLIR and not to the purchasing agency.
Requirement for award. To be eligible for award, the Offeror must comply as
follows:
Hawaii business. A business entity referred to as a "Hawai'i business", is
registered and incorporated or organized under the laws of the State of Hawai' i.
' As evidence of compliance, Offeror shall submit a CERTIFICATE OF GOOD
STANDING issued by the Department of Commerce and Consumer Affairs
Business Registration Division (BREG). A Hawai' i business that is a sole
proprietorship, however, is not required to register with the BREG, and therefore
not required to submit the certificate. An Offeror's status as sole proprietor or
other business entity and its business street address indicated on the Offer Form
page OF-1 will be used to confirm that the Offeror is a Hawai' i business.
Compliant non-Hawaii business. A business entity referred to as a
"compliant non-Hawai' i business," is not incorporated or organized under the
laws of the State of Hawai' i but is registered to do business in the State. As
evidence of compliance, Offeror shall submit a CERTIFICATE OF GOOD
STANDING.
To obtain a CERTIFICATE OF GOOD STANDING go online to
www.BusinessReaistrations.com and follow the prompt instructions. To register
or to obtain a "Certificate of Good Standing" by phone, call (808) 586-2727 (M-F
7:45 to 4:30 HST). The 'Certificate of Good Standing" is valid for six months
from date of issue and must be valid on the date it is received by the purchasing
agency.
Offerors are advised that there are costs associated with registering and
' obtaining a "Certificate of Good Standing" from the DCCA.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 10 OF 11
Timely Submission of all Certificates. The above certificates should be
applied for and submitted to the purchasing agency as soon as possible. If a
valid certificate is not submitted on a timely basis for award of a contract, an
offer otherwise responsive and responsible may not receive the award.
Final Payment Requirements. In addition to a tax clearance certificate an
original "Certification of Compliance for Final Payment" (SPO Form-22), attached,
will be required for final payment. A copy of the Form is also available at
www.spo.hawaii.oov. Select "Forms for Vendors/Contractors" from the Chapter
103D, HRS, pop-up menu.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ SPECIAL PROVISIONS ~ PAGE 11 OF 11
APPENDIX A
PRICING PROPOSAL
SORT STATION RELOAD BUILDING ANDIOR
MUNICIPAL SOLID WASTE REDUCTION FACILITY
FOR THE
COUNTY OF HAWAII
_'7
PRICING PROPOSALS FOR THE
1 FINANCING AND THE FURNISHING OF ALL EQUIPMENT, ACCESSORIES,
STRUCTURES, LABOR, MATERIALS, TOOLS, SUPPLIES, AND APPURTENANCES
NECESSARY TO FINANCE, DESIGN, CONSTRUCT, TEST,
OPERATE AND MAINTAIN FOR TWENTY(20) YEARS
A SORT STATION RELOAD BUILDING AND/OR
MUNICIPAL SOLID WASTE REDUCTION FACILITY
FOR THE COUNTY Of HAWAII
Date
Finance Director
County of Hawai' i
Hilo, Hawaii 96720
Dear Sir:
We hereby agree TO FINANCE and TO FURNISH ALL EQUIPMENT, ACCESSORIES,
STRUCTURES, LABOR, MATERIALS, TOOLS, SUPPLIES, AND APPURTENANCES:
1. NECESSARY TO FINANCE, DESIGN, AND CONSTRUCT A RELOAD BUILDING INCLUDING
SCALES, SCALEHOUSE AND NECESSARY ROADWAYS AND INFRASTRUCTURE to be located
at the County of Hawaii East Hawaii Regional Sort Station facility capable of a minimum throughput
capacity) of Municipal Solid Waste based on estimates in Table 2.6 of the Final EIS, in accordance
with the Contract for the Financing, Design, Engineering, and Construction of a RELOAD BUILDING
for the County of Hawaii (hereinafter called the Reload Building Construction Contract) to be
developed per the format in Exhibit A1, upon acceptance of the proposal, for a lump sum amount
of Dollars )
And complete construction within calendar days
AND/OR
2. NECESSARY TO OPERATE AND MAINTAIN A RELOAD FACILITY (EXCLUDING THE
SCALEHOUSE) FOR TWENTY (20) YEARS in accordance with a Contract to be established for the
1 RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 1 OF 41
PRICING PROPOSAL
Operation and Maintenance of a RELOAD BUILDING for the County of Hawaii (hereinafter called the
Reload Building Operating Contract) which using the format described in Exhibit A2 herein, results in
our Offer Price of Dollars
) if the facility is purchased by the County of Hawaii or our Offer Price
of Dollars 1
if the Construction is to be financed by our company and amortized over the life of the maintenance
contract.
3. NECESSARY TO FINANCE, DESIGN, CONSTRUCT AND TEST A MUNICIPAL SOLID WASTE
REDUCTION FACILITY to be located adjacent to the County East Hawai i Regional Sort Station facility
rYilKttVIUYN
up td a maximum throughput capacity of 45,625 tons per year (TPY) (average of 125 tons per day at
inception) of Municipal Solid Waste, in accordance with the Contract for the Financing, Design,
Engineering, Construction, and Testing of a MUNICIPAL SOLID WASTE REDUCTION FACILITY for
the County of Hawaii (hereinafter called the Solid Waste Reduction Construction Contract) attached
hereto, compensation for costs to be amortized over twenty (20) years during the operation of said
facility.
4. NECESSARY TO OPERATE AND MAINTAIN A MUNICIPAL SOLID WASTE REDUCTION FACILITY
FOR TWENTY (20) YEARS in accordance with the Contract for the Operation and Maintenance of a
MUNICIPAL SOLID WASTE REDUCTION FACILITY for the County of Hawaii (hereinafter called the
Solid Waste Reduction Operating Contract) which using the procedure described in Exhibit 4A4 herein,
results in our Offer Price of Dollars
)
By submitting this offer we accept the procedure as provided herein (including Exhibits A1, A2, A3 and
A4 with their respective attachments) which are an integral part of this proposal) to determine our Offer Price.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 2 OF 41
PRICING PROPOSAL
Further, we have reviewed and agree to the methodology herein to account for inflation rates, discount rates,
Municipal Solid Waste (MSW) quantities, and interest rates which, using said procedure, results in our Offer
Price.
It is understood that the term MSW expressed herein refers to solids, that will be delivered to the
Facility by the County and others and will consist of traditional residential ,commercial and industrial waste,
bulky items such as mattresses, carpeting, and household hazardous waste.
It is understood that although the basis for determining the lowest offer price are as established in Exhibit III,
payments shall be in accordance with the terms and conditions of the Construction and Operating Contracts.
It is understood and agreed that prices include all taxes applicable to the products or services or the
furnishing, sale or purchase thereof, whether assessed against, chargeable to, or payable by the County.
It is understood that the County reserves the right to make multiple awards to satisfy the County's
1 needs of municipal solid waste disposal.
It is also understood and agreed that the Finance Director reserves the right to accept or reject any
or all offers, if deemed to be in the best interest of the County of Hawaii.
It is also understood and agreed that all construction of any kind shall be subject to the General
Requirements and Covenants of the Department of Public Works, as amended and the Standard Specifications
for Public Works Construction currently in use by the Department of Public Works, County of Hawaii and all
other aspects of this proposal, including any and all operations of facilities on behalf of the County of Hawaii
shall be subject to the General Terms and Conditions for Goods and Services, dated July 1, 1994, attached
hereto andlor incorporated herein by reference.
It is further understood and agreed that if this Contract is awarded to us, we will furnish security as
required pursuant to the provisions of the Contracts.
Enclosed herewith is a certified copy of a resolution or other written evidence of authority signed by
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 3 OF 41
PRICING PROPOSAL
7 an officer of the corporation, authorizing the persons or persons signing to execute offers, contracts and other
necessary documents in connection therewith.
Enclosed herewith as a guarantee of all Pricing Proposals submitted this day is:
(Check One) Surety Bond [ J Share Certificate
[ J Legal Tender [ ]Treasurer's Certificate
[ ] Certificate of Deposit [ ]Teller's Check
[ ] Cashier's Check [ ]Official Check
[ J Certified Check [ ]Cash
in the amount of: _Fifty-ThousandDollars 50.000.00 )and made payable to the Director of Finance,
County of Hawaii
' It is understood and agreed that the items to be furnished are for the exclusive use of the County of
Hawaii and are therefore exempt from Federal Excise Taxes and that all net offer prices exclude such taxes.
An exemption certificate will be fumished upon request for use by the offerors in obtaining such exemption.
The undersigned further agrees that he has carefully read and understands the Proposal for this
contract and that the Director of Finance, County of Hawaii, reserves the right to accept or reject any and/or
all proposals or, if in his judgment, by so doing, it will be for the best interest of the Public and the County of
Hawaii.
Upon acceptance and award of this Proposal by the Director of Finance, the undersigned hereby
agrees to fumish items upon demand.
All successful proposers will be required to furnish proof of compliance with the requirements of §3-122-
112, HAR.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY N APPENDIX A ~ PAGE 4 OF 41
PRICING PROPOSAL
The undersigned has carefully read and understands the terms and conditions specified in the
Specifications and Special Provisions and all other documents attached hereto, by reference made a part hereof
and available upon request; and hereby submits the following offer to perform the work specified herein, all in
accordance with the true intent and meaning thereof. The undersigned further understands and agrees that by
submitting this offer, 1) he/she is declaring his/her offer is not in violation of Chapter 84, Hawaii Revised Statutes,
concerning prohibited State contracts, and 2) he/she is certifying that the price(s) submitted was (were)
independently arrived at without collusion. This proposal is in all respects fair and is made without collusion on the
part of any person, firm, or corporation, and no official or employee of the government has any illegal interest in the
offer or any portion of the profits thereof.
The undersigned represents that he/they is/are: (Check one only)
? A Hawaii business incorporated or organized under the laws of the State of Hawaii;
OR
? A Compliant Non-Hawaii business not incorporated or organized under the laws of
the State of Hawaii, but registered at the State of Hawaii Departrnent of Commerce and
Consumer Affairs Business Registration Division to do business in the State of Hawaii.
State of incorporation:
Offeror is:
? Sole Proprietor ? Partnership ? Corporation ? Joint
? Other
Federal I.D. No.:
Hawaii GET License I.D. No.:
Business address:
City, State, Zip Code:
RFP 2146 ti WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 5 OF 41
PRICING PROPOSAL
Name of Company contact and address to which correspondence
should be sent:
Name of individual:
Title:
Address:
Exact Legal Name of Company (Offeror) under which the awarded contract will be executed
Telephone No.:
Fax No.:
E-mail Address:
Respectfully submitted:
(x)
Authorized (Original) Signature
Name and Title (Please Type or Print)
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 6 OF 41
PRICING PROPOSAL
OFFEROR SHALL BE RESPONSIBLE TO CONFIRM THE EXISTENCE OF ANY ADDENDUM TO THIS
REQUEST FOR PROPOSALS BY CONTACTING THE DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT DIRECTOR BY TELEPHONING (808) 961-8083 PRIOR TO SUBMITTING ANY OFFER AND
INQUIRING AS TO THE STATUS OF ALL ADDENDA.
Acknowledge addendum (if any) by indicating the date of receipt.
Addendum No. 1
Addendum No.2
Addendum No. 3
Addendum No.4
Addendum No. 5
Addendum No. 6
ADDENDA, IF ANY ISSUED, AFTER A PROPOSAL HAS BEEN SUBMITTED WILL BE ALLOWED TO BE
CONSIDERED BY THE OFFEROR AND THE PROPOSAL MAY BE MODIFIED BY A SEPARATE
SUBMISSION TO ACCOUNT FOR THE ADDITIONAL ADDENDA.
RFP 2146 H WASTE REDUCTION TECHNOLOGY ~ APPENDIX A N PAGE 7 OF 41
PRICING PROPOSAL
1 CERTIFICATE
T0: Finance Director, County of Hawaii
SUBJECT: Operation and Maintenance of a MUNICIPAL SOLID WASTE REDUCTION FACILITY
Pursuant to Section 103-55, H.R.S., I hereby certify that if awarded the contract in excess of
$25,000.00, the services are to be performed under the following conditions:
1. The Services to be rendered shall be performed by employees paid at wages or salaries not less than
wages paid to the public officers and employees of similar work.
2. All applicable laws of the Federal and State governments relating to workmen's compensation,
unemployment compensation, payment of wages, and safety will be fully complied with.
Name of Offeror
Authorized Signature:
Print or Type Name:
Title:
Date:
Address:
Zip Code
Telephone Number:
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 8 OF 41
PRICING PROPOSAL
EXHIBIT Al
CONTRACT PRICE BREAKDOWN FOR CONSTRUCTION OF RELOAD FACILITY
Check one:
? We will construct the reload facility exactly in accordance with the plans and specifications
furnished by the County of Hawaii.
? We will construct the reload facility in accordance with our own plans and specifications, included
herein.
DOLLAR AMOUNTS
A. PRE-CONSTRUCTION $
1. Offer Expenses $
2. Design Expenses $
3. Construction Management $
4. Permitting $
1 5. Others (list on attachment) $
B. SITE WORK $
1. Clearing and Grading $
2. Roadways $
3. Landscaping $
4. Others (list on attachment) $
C. SITE UTILITY $
1. Water System $
2. Drain System $
3. Sewer System $
4. Power System $
' 5. Others (list on attachment) $
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 9 OF 41
PRICING PROPOSAL
D. BUILDING $
1. Foundation $
2. Construction $
3. Electrical $
4. Plumbing $
5. Utilities $
6. Signare $
7. Others (list on attachment) $
E. EQUIPMENT $
1. Processing $
2. Rolling Stock, Vehicles, etc. $
1 3. Others (list on attachment) $
F. MISCELLANEOUS EXPENSES $
1. Insurance $
2. Performance Bond $
3. Others (list on attachment)
G. TOTAL CONSTRUCTION COST (OFFER PRICE)
(Sum of A, 8, C, D, E, AND F) $
' RFP 2146 H WASTE REDkJCTION TECHNOLOGY N APPENDIX A ~ PAGE 10 OF 41
PRICING PROPOSAL
ATTACHMENT
TO
EXHIBIT Al
A. PRE CONSTRUCTION
5. Others: $
a. $
b. $
c. $
d. $
e. $
B. SITE WORK
4. Others: $
a. $
b. $
c. $
d. $
e. $
C. SITE UTILITIES
5. Others: $
a. $
b. $
a $
d. $
e. $
RFP 2146 ti WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 31 OF 41
PRICING PROPOSAL
ATTACHMENT
TO
EXHIBIT Al
D. BUILDINGS
7. Others: $
a. $
b. $
c. $
d. $
e. $
E. EQUIPMENT
3. Others: $
' a. $
b. $
c. $
d. $
e. $
F. MISCELLANEOUS EXPENSE
3. Others: $
a. $
b. $
c. $
d. $
e. $
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 12 OF 41
PRICING PROPOSAL
ATTACHMENT
TO
EXHIBIT Al
CONTRACTORS AND SUB-CONTRACTORS TO BE USED FOR CONSTRUCTION OF RELOAD
FACILITY:
General Contractor License #
All sub-contractors doing one percent (1%) or more of the construction:
Grading: License #
Electrical: License #
Plumbing: License #
Paint: License #
Paving: License #
Signage: License #
Others:
Type of Work Name of Contractor License Number
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 13 OF 41
PRICING PROPOSAL
NOTES TO EXHIBIT Al AND
ATTACHMENTS
1. Any and all applicable taxes shall be included in the cost for each item listed.
2. Main headings of A, B, C, D, E & F should total all sub-items listed underneath; likewise all "Others"
sub headings should total the items listed under each on the attachment.
2. Exhibit Al must be completed by all Offerors for the reload facility, but need not be completed by all
offerors of the Municipal Solid Waste Reduction Technology. Offerors shall fill in each line separately
and not combine items. If any line is not applicable and not used, "N.A." shall be entered on such line.
3. Include all costs for the Scalehouse, Scale Construction and necessary roads and infrastructure.
Note: Completely identify any and all assumptions made in completing the price information contained herein.
No adjustments will be allowed in the event there is no comparable assumption to justify a differing future
condition.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 14 OF 41
PRICING PROPOSAL
EXHIBIT A2
TWENTY-YEAR COST SCHEDULE -RELOAD FACILITY
COUNTY TO PURCHASE FACILITY AT OUTSET
YEAR OF OPERATION
ITEM
2006 2007 2008 2009 2010
1. Assumed Tonnage Per Year
TPY 71,152 67,796 66,149 64,430 62637
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Other Costs (list)
7.
8.
9.
10.
11.
12.
13.
14.
15.
TOTAL ANNUAL OPERATING COST
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 15 OF 41
PRICING PROPOSAL
EXHIBIT A2
TWENTY-YEAR COST SCHEDULE -RELOAD FACILITY
COUNTY TO PURCHASE FACILITY AT OUTSET
YEAR OF OPERATION
ITEM
2011 2012 2013 2014 2015
1. Assumed Tonnage Per Year
TPY 60,768 58,821 56,794 55,698 56,609
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Other Costs (list)
7.
8.
9.
10.
11.
12.
13.
14.
15.
TOTAL ANNUAL OPERATING COST
' RFP 2146 ti WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 16 OF 41
PRICING PROPOSAL
EXHIBIT A2
TWENTY-YEAR COST SCHEDULE -RELOAD FACILITY
COUNTY TO PURCHASE FACILITY AT OUTSET
YEAR OF OPERATION
ITEM
2016 2017 2018 2019 2020
1. Assumed Tonnage Per Year
TPY 57,535 58,477 59,433 60,406 61,394
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Other Costs (list)
7.
8.
9.
10.
11.
12.
13.
14.
15.
TOTAL ANNUAL OPERATING COST
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 17 OF 41
PRICING PROPOSAL
EXHIBIT A2
TWENTY-YEAR COST SCHEDULE -RELOAD FACILITY
COUNTY TO PURCHASE FACILITY AT OUTSE
YEAR OF OPERATION
ITEM
2021 2022 2023 2024 2025
1. Assumed Tonnage Per Year
TPY 62,398 63,419 64,457 65,511 66,583
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Other Costs (list)
7.
8.
9.
10.
11.
12.
13.
14.
15.
TOTAL ANNUAL OPERATING COST
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 18 OF 41
PRICING PROPOSAL
EXHIBIT A2A
TWENTY-YEAR COST SCHEDULE -RELOAD FACILITY
OFFEROR TO FINANCE CONSTRUCTION OVER LIFE OF AGREEMEN
YEAR OF OPERATION
ITEM
2006 2007 2008 2009 2010
1. Assumed Tonnage Per Year
TP 71,152 67,796 66,149 64,430 62637
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Amortization of Construction
costs
7. Other Costs (list)
8.
9.
10.
11.
12.
13.
14.
15.
TOTAL ANNUAL OPERATING COST
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY APPENDIX A ~ PAGE 19 OF 41
PRICING PROPOSAL
EXHIBIT A2A
TWENTY-YEAR COST SCHEDULE -RELOAD FACILITY
OFFEROR TO FINANCE CONSTRUCTION OVER LIFE OF AGREEMENT
YEAR OF OPERATION
ITEM
2011 2012 2013 2014 2015
1. Assumed Tonnage Per Year
TP 60,768 58,821 56,794 55,698 56,609
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Amortization of Construction
costs
7. Other Costs (list)
8.
9.
10.
11.
12.
13.
14.
15.
TOTAL ANNUAL OPERATING COST
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 20 OF 41
PRICING PROPOSAL
EXHIBIT A2A
TWENTY-YEAR COST SCHEDULE -RELOAD FACILITY
OFFEROR TO FINANCE CONSTRUCTION OVER LIFE OF AGREEMENT
YEAR OF OPERATION
ITEM
2016 2017 2018 2019 2020
1. Assumed Tonnage Per Year
TP 57,535 58,477 59,433 60,406 61,394
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Amortization of Construction
costs
7. Other Costs (list)
8.
9.
10.
11.
12.
13.
14.
15.
TOTAL ANNUAL OPERATING COST
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 21 OF 41
PRICING PROPOSAL
EXHIBIT A2A
TWENTY-YEAR COST SCHEDULE -RELOAD FACILITY
OFFEROR TO FINANCE CONSTRUCTION OVER LIFE OF AGREEMENT
YEAR OF OPERATION
ITEM
2021 2022 2023 2024 2025
1. Assumed Tonnage Per Year
TP 62,398 63,419 64,457 65,511 66,583
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Amortization of Construction
costs
' 7. Other Costs (list)
8.
9.
10.
11.
12.
13.
14.
15.
TOTAL ANNUAL OPERATING COST
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 22 OF 41
PRICING PROPOSAL
EXHIBIT A26
TWENTY-YEAR COST SCHEDULE -SOLID WASTE REDUCTION
Year of Operation TOTAL ANNUAL OPERATING COST
County to Purchase Contractor to
Reload Facility at Finance Cost
Outset of Contract of Facility
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
TOTAL (1 - 20) $ $
WHICH WHEN DIVIDED BY 1,240,467
RESULTS IN AN AVERAGE PER TON PRICE OF
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 23 OF 41
PRICING PROPOSAL
1 EXHIBIT A3
CONTRACT PRICE BREAKDOWN FOR WASTE REDUCTION TECHNOLOGY
(Costs herein are for reference purposes only. Cost of facility is to be financed by offeror and amortized
overtwenty-year life of operating agreement)
DOLLAR AMOUNTS
A. SYSTEM $
1. Offer Expenses $
2. Design Expenses $
3. Construction Management $
4. Permitting $
5. Others $
B. SITE WORK $
1. Clearing and Grading $
2. Roadways $
3. Landscaping $
4. Others $
C. SITE UTILITY $
1. Water System $
2. Drain System $
3. Sewer System $
4. Power System $
5. Others $
' RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 24 OF 41
PRICING PROPOSAL
D. BUILDINGS $
1. Receiving and Storage Building (If applicable in addition to reload) $
2. Process Building $
3. Product Storage Area $
4. Power Block (boilers, turbine etc.) $
5. Utilities $
6. Others $
E. EQUIPMENT $
1. Processing $
2. Operational (reactor, boilers, turbine, air pollution control system) $
3. Odor, Environmental and Safety Controls $
1 4. Rolling Stock. Vehicles, etc. $
5.. Others $
F. SYSTEM TESTING $
G. MISCELLANEOUS EXPENSES $
1. Insurance $
2. Performance Bond $
3. Others $
H. TOTAL CONSTRUCTION COST (GUARANTEED)
(Sum of A, B, C, D, E, F AND G) $
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 25 OF 41
PRICING PROPOSAL
ATTACHMENT
TO
EXHIBIT A3
A. SYSTEM COSTS
5. Others: $
a. $
b. $
c. $
d. $
e. $
B. SITE WORK
4. Others: $
a. $
b. $
c. $
d. ~
e. $
C. SITE UTILITIES
5. Others: $
a. $
b. $
a $
d. $
e. $
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 26 OF 41
PRICING PROPOSAL
ATTACHMENT
TO
EXHIBIT A3
D. BUILDINGS
6. Others: $
a. $
b. $
c. $
d. $
e. $
E. EQUIPMENT
5. Others: $
a. $
b. $
c. $
d. $
e. $
G. MISCELLANEOUS EXPENSE
3. Others: $
a. $
b. $
c. $
d. $
e. $
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 27 OF 41
PRICING PROPOSAL
ATTACHMENT
1 TO
EXHIBIT A3
CONTRACTORS AND SUB-CONTRACTORS TO BE USED FOR CONSTRUCTION OF
MUNICIPAL SOLID WASTE REDUCTION FACILITY:
General Contractor License #
All sub-contractors doing one percent (1%) or more of the construction:
Grading: License #
Electrical: License #
Plumbing: License #
Paint: License #
Paving: License #
Signage: License #
Others:
Type of Work Name of Contractor License Number
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 28 OF 41
PRICING PROPOSAL
NOTES TO EXHIBIT A3 AND
ATTACHMENTS
1. Any and all applicable taxes shall be included in the cost for each item listed.
2. Although Line items A, B, C, D, E, F AND G are estimates only and are not guaranteed by the Offeror,
Line H, which is the total of the Line Items A through G, is guaranteed by the Offeror. If the County
makes an award within 120 days of receipt of proposals, no increase in construction cost will be
permitted.
4. Where lines A.5, B.4, C.5, D.6, E.5, andlor G.3 are used by the Offeror, Attachment to Exhibit A3 shall
be completed listing the description and cost of each item included.
5. Exhibit A3 must be completed by all Offerors of Municipal Solid Waste Reduction Facility. Offerors
shall fill in each line separately and not combine items. If any line is not applicable and not used,
"N.A." shall be entered on such line.
6. Completely identify any and all assumptions made in completing the price information contained herein.
No adjustments will be allowed in the event there is no comparable assumption to justify a differing
future condition.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 29 OF 41
PRICING PROPOSAL
EXHIBIT A4
ANNUAL OPERATING AND MAINTENANCE EXPENSES
FOR PROCESSING:
BASED ON 45,625 TPY MSW IN FIRST YEAR
A. ANNUAL LABOR COST
TOTAL ANNUAL LABOR COST $
B. ANNUAL MATERIALS COST
TOTAL ANNUAL MATERIALS COST $
C. ANNUAL CONTRACT SERVICES AND RENTAL
TOTAL ANNUAL CONTRACT SERVICES AND RENTALS $
1 D. ANNUAL FUEL COST
TOTAL ANNUAL FUEL COST $
E. ANNUAL OTHER COST
TOTAL ANNUAL OTHER COST $
F. TOTAL ANNUAL PROCESSING COST
(Sum of A1, B1, Ct, D1 and Et) $
G. ANNUAL MISCELLANEOUS EXPENSES
1. Insurance Subtotal $
2. Others Subtotal $
TOTAL ANNUAL MISCELLANEOUS EXPENSES $
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A N PAGE 30 OF 41
PRICING PROPOSAL
H. ANNUAL UTILITY EXPENSES
1. Electricity Subtotal $
2. Water Subtotal $
TOTAL ANNUAL UTILITY EXPENSES $
I. TOTAL ANNUAL REIMBURSABLE EXPENSES
(Sum of G.1, G.2, H.1, H.2) $
J. TOTAL ANNUAL PROCESSING COST EXPENSES
(Sum of F and I) $
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 31 OF 41
PRICING PROPOSAL
' ATTACHMENT
TO
EXHIBIT A4
E. ANNUAL OTHER COSTS $
a. $
b. $
c. $
d. $
G.2. OTHER MISCELLANEOUS EXPENSES: $
a. $
b. $
c. $
d. $
e. $
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 32 OF 41
PRICING PROPOSAL
' NOTES TO EXHIBIT A4
AND ATTACHMENT
1. Any and all applicable taxes shall be included in the cost for each item.
2. All Lines of Exhibit II must be completed by Offerors of MSW Technologies. Offerors shall fill in each
line separately and not combine items. If any line is not applicable and not used, "N.A." shall be
entered on such line.
3. Line Items
Line A Cost for labor shall be no less than the minimum wages applicable to various classes
of public employees (HRS 103-55).
Line E Cost for items that are not included in Line A through Line D.
Line F Total guaranteed cost for processing the Guaranteed Capacity of MSW specified
in this Pricing Proposal which includes all the costs for the items stated in Lines A
through E
Line G The Offeror's insurance cost and others. Attachment to Exhibit A4 shall be
completed listing the description and cost of each item included.
Line H. Cost of utilities based on the Offeror's determination applicable usage rates for
each utility service as of
Line I. Total Reimbursable Cost
Line J Total Annual Processing Cost Based on 45,625 TPY
Additional Cost Estimates should be provided for annual operating and maintenance expenses at
different annual quantities, i.e. 45,626 - 75,000 TONS per year, 275,001 -100,000 tons per year,
100,001 -150,000 tons per year, etc.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 33 OF 41
PRICING PROPOSAL
EXHIBIT A4A
TWENTY-YEAR COST SCHEDULE -SOLID WASTE REDUCTION
YEAR OF OPERATION
ITEM
1 2 3 4 5
1. Annual Capacity
Char a Interest
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Other Costs
7. Total Guaranteed Processing
Cost
8. Reimbursable Expenses
9. Total Expense
10. Less Revenues
11. Total Annual Service Fee
12. Net Present Value of Line 11
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 34 OF 41
PRICING PROPOSAL
EXHIBIT A4A
TWENTY-YEAR COST SCHEDULE -SOLID WASTE REDUCTION
YEAR OF OPERATION
ITEM
6 7 8 9 10
1. Annual Capacity
Cha a Interest
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Other Costs
7. Total Guaranteed Processing
Cost
8. Reimbursable Expenses
9. Total Expense
10. Less Revenues
11. Total Annual Service Fee
12. Net Present Value of Line 11
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 35 OF 41
PRICING PROPOSAL
EXHIBIT A4A
TWENTY-YEAR COST SCHEDULE -SOLID WASTE REDUCTION
YEAR OF OPERATION
ITEM
11 12 13 14 15
1. Annual Capacity
Cha a Interest
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Costs
6. Other Costs
7. Total Guaranteed Processing
Cost
8. Reimbursable Expenses
9. Total Expense
10. Less Revenues
11. Total Annual Service Fee
12. Net Present Value of Line 11
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 36 OF 41
PRICING PROPOSAL
EXHIBIT A4A
TWENTY-YEAR COST SCHEDULE -SOLID WASTE REDUCTION
YEAR OF OPERATION
ITEM
16 17 18 19 20
1. Annual Capacity
Char a Interest
2. Labor Cost
3. Materials Cost
4. Contract Services and Rental
Cost
5. Fuel Cost
6. Other Costs
7. Total Guaranteed Processing
Cost
8. Reimbursable Expenses
9. Total Expense
10. Less Revenues
11. Total Annual Service Fee
12. Net Present Value of Line 11
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 37 OF 41
PRICING PROPOSAL
EXHIBIT A4A
TWENTY-YEAR COST SCHEDULE -SOLID WASTE REDUCTION
Year of Operation Net Present Value from Line 12)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
M- 17
18
19
20
TOTAL (1 - 20) $
AVERAGE OFFER PRICE (TOTALI20) _
WHICH WHEN DIVIDED BY THE CONTRACTORS TPY RESULTS IN AN AVERAGE PRICE OF
$ ITON
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 38 OF 41
PRICING PROPOSAL
NOTES FOR COMPLETION OF EXHIBIT A4A TABLE
Line 1. The annual capacity charge is the Total Construction Cost of the Facility (Line H of Exhibit A3)
amortized over the 20-year operation period in dollars per year. The interest rate used in establishing
the annual amortized cost shall be guaranteed.
Line 2. Total Annual Labor Cost (Line A of Exhibit A4) multiplied by the quantity LER, where LER is the Labor
Escalation Rate, which for offer purposes shall be (1.02).
Note. The 1.02 multiplier escalates the cost at a two percent (2%) per annum rate and the exponent n
escalates the cost to the mid-point of the year of operation. The value of the exponent n for the year
x is x + 2 which is based on an assumed start of operation date of January 2008 to allow for one (1)
year period which the offer is effective, and two and one half (2.5) years for design, permitting and
construction. Thus, the exponent n is equal to 2 for Year 1, 3 for Year 2, 4 for Year 3, and soon up to
21 for Year 20.
Line 3. Total Annual Materials Cost (Line B of Exhibit A4) multiplied by the quantity MER, where the MER is
the Material Escalation Rate, and which for bidding purposes shall be (1.02) as described in the note
under Line 2 hereinabove.
Line 4. Total Annual Contract Services and Rental Cast (Line C of Exhibit A4) multiplied by the quantity RER,
where RER is the Rental Escalation Rate, which for offer purposes shall be (1.02) as described in the
note under Line 2 hereinabove.
Line 5. Total Annual Fuel Cost (Line D of Exhibit A4) multiplied by the quantity FER where FER is the Fuel
Escalation Rate, which for offer purposes shall be (1.02), shall be as described in the note under Line 2
hereinabove.
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 39 OF 41
PRICING PROPOSAL
1 Line 6. Total Annual Other Cost (Line E of Exhibit A4) multiplied by the quantity OER, where OER is the Other
Escalation Rate, which for offer purposes shall be (1.02) as described in the note under Line 2
hereinabove.
Line 7. Total Annual Guaranteed Processing Cost equal to the sum of Lines 2 through 6 inclusive.
Line 8. Reimbursable Expenses (Line K of Exhibit II), in dollars per year equal to the sum of:
(I) The Offeror's insurance expenses (Line 1.1 of Exhibit A4) which for the first three (3) years
of operation will be exactly as bid on this line and which for subsequent years will be equal
to the average annual insurance cost for the first three (3) years multiplied by (1.02)n-3
(ii) The Offeror's Other Expenses (Line 1.2 of Exhibit A4) multiplied by (1.02).
(iv) The Offeror's utility expenses (Line J of Exhibit A4) which for the first three (3) years of
operation will be exactly as bid on these lines and which for subsequent years will be equal
to the average annual utility cost for the first three (3) years multiplied by (1.02)^-~.
See note under Line 2 hereinabove for explanation of escalation methodology.
Line 10. Less Revenues, which is the revenues from sale of energy andlor recovered materials multiplied
by EER where the EER is the Energy Escalation Rate, which for offer purposes shall be (1.02) as
described in the note under Line 2 hereinabove.
Line 11.Total Annual Service Fee which is equal to the algebraic sum of Lines 1, 7, 8 and 10.
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 40 OF 41
PRICING PROPOSAL
Line 12.The Net Present Value of Line 11, using a discount rate of five percent (5%) from the mid-point of the
year of operation to mid point. The assumed start date of operation shall be February 2008.
The Offer Price, recorded on Page 2 of this Pricing Proposal, is defined,as the sum of the Net Present
Values of Line 11 for each of twenty (20) years of operation divided by twenty (20). The offer price
represents the average net present cost which would be paid for disposal over the twenty (20) year
operating contract.
Note: Completely identify any and all assumptions made in completing the price information contained herein.
No adjustments will be allowed in the event there is no comparable assumption to justify a differing future
condition.
RFP 2146 N WASTE REDUCTION TECHNOLOGY ~ APPENDIX A ~ PAGE 41 OF 41
PRICING PROPOSAL
~ APPENDIX B
PROTOTYPE CONTRACT FOR THE
FINANCING
DESIGN, ENGINEERING,
CONSTRUCTION AND TESTING
OF A
MUNICIPAL SOLID WASTE
REDUCTION FACILITY
COUNTY OF HAWAII
OCTOBER 29, 2004
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY µ APPENDIX B N PAGE 1 OF 52
PROTOTYPE CONSTRUCTION CONTRACT
TABLE OF CONTENTS
Section Paoe Number
ARTICLE I
DEFINITIONS
1.1 Definitions of Specific Terms & List of Exhibits 6
ARTICLE II
2.1 Contract Documents 12
2.2 Order of Precedence of Documents 12
ARTICLE III
TERM OF CONTRACT
3.1 Term of Contract 12
3.2 Survival 12
ARTICLE IV
SITE
4.1 Right of Use and Occupancy 12
4.2 Easements 13
4.3 Off-Site Services and Utilities 13
4.4 Landscaping of the Site 13
4.5 Roads and Parking Facilities at the Site 13
4.6 This Section Not Used
4.7 Liens and Encumbrances Against Site and/or Facility 13
4.8 Rights of County and Others to Inspect Site 14
4.9 Security at Site 14
ARTICLE V
DESIGN OF FACILITY
5.1 Design of Facility 14
5.2 Submission of Updated and Corrected Progress
Schedules by Contractors 17
5.3 Changes in Design 17
5.4 Review of Design Plans for Compliance with this Contract 18
5.5 Design and Capacity 19
5.6 Compliance with Laws 19
5.7 Agreement to Use Sound Construction Practices 19
5.8 Agreements with Governmental Agencies and Utility Firms 19
5.9 Signatures for Contract Drawings 19
5.10 Disposition of Drawings, Original Specifications, and Manuals 20
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX B ~ PAGE 2 OF 52
PROTOTYPE CONSTRUCTION CONTRACT
ARTICLE VI
CONSTRUCTION OF FACILITY
6.1 Construction of Facility 20
6.2 Subcontractors 21
6.3 Changes to Facility During Construction 21
6.4 Progress Photographs 23
6.5 Permits and Licenses 23
6.6 Contractors Sole Responsibility for Recovered Materials Shipped 23
6.7 Compliance With County Construction Specifications 24
6.8 Execution of the Agreement for the Sale of Marketable Products 24
ARTICLE VII
PERFORMANCE TESTING
7.1 Shakedown of Facility 24
7.2 Conduct of Performance Tests and Certification of Results 24
7.3 Completion of the Performance Tests at Less Than Guaranteed Capacity 27
7.4 Deleted
7.5 Revenues from Energy andlor Recovered Materials Sales During the Construction Period 27
7.6 Performance Guarantee 27
7.7 Test Equipment 28
ARTICLE VIII
FORCE MAJEURE
8.1 Inability to Perform or Delay in Performance by Contractor
Due to Force Majeure During Construction Period 28
8.2 Inability to Perform or Delay in Performance by County
Due to Force Majeure During Construction Period 28
8.3 Notification of an Event of Force Majeure 29
8.4 Strikes of Contractors Personnel 29
ARTICLE IX
DEFAULT; TERMINATION OF CONTRACT; LIQUIDATED DAMAGES;
BOND FOR FAITHFUL PERFORMANCE
9.1 Events of Default by Contractor 29
9.2 Events of Default by the County 30
9.3 Termination on Occurrence of an Event of Default 31
9.4 Liability of Contractor for Delay in Completion 31
9.5 Liability of Contractor Upon Termination of Contract in the Construction Period 32
9.6 Termination for Continuing Force Majeure 32
9.7 Termination for Inability to Meet Performance 32
9.8 Section Not Used
9.9 Obligation of Contractor to Grant License and Supply Proprietary Information to County;
Assignment of Contracts and Training Upon Termination 33
9.10 Bonds for Faithful Performance 34
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX B ~ PAGE 3 OF 52
PROTOTYPE CONSTRUCTION CONTRACT
9.11 Liability of County for its Events of Default 34
9.12 Generallndemnity 34
ARTICLE X
PAYMENTS AND ADJUSTMENTS TO THE CONTRACT
10.1 Payments 37
10.2 Adjustments to the Contract 37
10.3 Wages and Hours 38
ARTICLE XI
CONFIDENTIAL INFORMATION
11.1 Confidential and Proprietary Information 40
11.2 Identification of Confidential Information 40
11.3 Non-Disclosure of Confidential Information 40
11.4 Permitted Disclosure 40
11.5 Uniform Information Practices Act Requests; Legal Demands 40
11.6 Limitation on Use 41
ARTICLE XII
CONTRACT ADMINISTRATION
12.1 Contract Representatives 41
12.2 Site Representatives 41
12.3 Right of County to Examine Certain Books and Records of the Contractor
Relating to the Facility 41
12.4 Office for County's Contract Representative 41
12.5 Computer Interface 42
ARTICLE XIII
INSURANCE AND CONDEMNATION
13.1 General Provisions as to Insurance 42
13.2 Builders All Risk Insurance 42
13.3 Comprehensive General Liability Insurance 43
13.4 Motor Vehicle Liability Insurance 43
13.5 Workers Compensation Insurance 43
13.6 Payment of Premiums and Deductibles 43
13.7 Risk Retention 44
13.8 Disposition Proceeds of Insurance; Damages in Excess of Insurance 44
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 Representations and Warranties of the Contractor 44
14.2 Representations and Warranties of the County 45
14.3 Further Assurances 47
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX B ~ PAGE 4 OF 52
PROTOTYPE CONSTRUCTION CONTRACT
14.4 Relationship of the Parties 47
14.5 Deleted
14.6 Assignment of Contract 47
14.7 Binding Effect 48
14.8 Governing Law and Jurisdiction; No Sovereign Immunity 48
14.9 Waiver 48
14.10 Approvals, Consents, and Agreements 48
14.11 Entire Agreement; Amendments 48
14.12 Severability 49
14.13 Effect of Article and Section Headings and Table of Contents 49
14.14 Contract May Be Executed in Counterparts 49
14.15 Independent Third Party 49
14.16 Agreement as to Tax Exemptions, Grants and Other Benefits During the
Construction Period 49
14.17 Non-Discrimination in Employment 50
14.18 Advertisements 50
14.19 Conditions Precedent 50
14.20 Interest 51
14.21 Notices 51
Signature Page 52
LIST OF EXHIBITS
(NO EXHIBITS INCLUDED IN PROTOTYPE CONTRACT, TYPICAL EXHIBITS MAY
INCLUDE, BUT ARE NOT LIMITED TO THE FOLLOWING:)
EXHIBIT # CHARACTERISTICS AND QUANTITIES OF MUNICIPAL SOLID WASTE
EXHIBIT # PERFORMANCE GUARANTEES
EXHIBIT # GUARANTY AGREEMENT
EXHIBIT # LABOR AND MATERIAL PAYMENT BOND
EXHIBIT # ESTIMATE FOR CHANGE ORDER WORK
EXHIBIT # SELECTION OF AND RESOLUTION OF CONFLICTS BY
INDEPENDENT THIRD PARTY
EXHIBIT # PERFORMANCE BOND
EXHIBIT I# GENERAL CONDITIONS CF CONSTRUCTION CONTRACTS OF THE
COUNTY OF HAWAII
EXHIBIT # PLANS AND SPECIFICATIONS PROVIDED BY THE CONTRACTOR
EXHIBIT # PERFORMANCE TESTS PROVIDED BY THE CONTRACTOR)\
RPP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX B ~ PAGE 5 OP 52
PROTOTYPE CONSTRUCTION CONTRACT
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS OF SPECIFIC TERMS. The terms herein below shall,
for the purpose of this Contract, have the following definitions which are equally
applicable to the single and plural forms of any of the terms:
"All Laws" shall mean all applicable federal, state and local laws, ordinances,
codes, regulations, and court orders including consent decrees, consent orders,
consent agreements, judgements, decrees, writs, determinations, or any like action of
any government authority having jurisdiction applicable to any activities associated with
the Facility in effect as of the date of submission of the Pricing Proposal.
"Award of Contract Date" shall mean the date upon which the County has
presented the final contract to the Contractor for its execution.
"Beneficial Material Reuse Services" shall mean and include all work performed
by or on behalf of the Contractor to receive Municipal Solid Waste and, if included by
the Contractor, Other Waste and to process these materials at the Facility at the Site
into Energy and/or Recovered Materials and to market such Energy and/or Recovered
Materials in accordance with the terms and conditions of this Contract.
"Capital Costs" shall mean the final adjusted Contract Price of this Contract
including any changes thereto required as a result of Force Majeure or at the request or
fault of the County and made in accordance with the provisions of this Contract.
"Coup "shall mean the County of Hawaii.
"County Indemnified Parties" shall mean the County and County officers,
employees and agents.
"Commercial Operations Date" shall mean the date upon which the Facility is first
ready for normal continuous operation at levels at least eighty-five percent (85%) of the
performance required-by-Exhibit C of this Contract, provided that the Contractor is in
compliance with all of the material prerequisite requirements of this Contract.
"Construction Commencement Date." Upon written notification by the Contractor
that it has acquired all necessary permits and is ready to proceed with construction, the
County shall give the Contractor written notice of the date to be used as the
Construction Commencement Date (i.e., the date of the Notice To Proceed) at least
thirty (30) days prior to such Construction Commencement Date or, if less than thirty
(30) days prior, as mutually agreed to by the Contractor and the County. The
construction commencement date shall take place on or before 365 days from the
Award of Contract Date unless the 365 day period for completing the above is extended
for permit processing conditions beyond the Contractors control which were not caused
by incomplete or untimely submittals, or the Contractors inability to meet or incorporate
conditions required to obtain all necessary approvals and permits for the Facility.
"Construction Completion Date" shall be the Commercial Operations Date, which
for the purpose of satisfying the terms and conditions of this Contract, shall take place
on or before the 545th calendar day after the Construction Commencement Date, as
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX B ~ PAGE 6 OF 52
PROTOTYPE CONSTRUCTION CONTRACT
such date may be extended as provided for in this Contract.
"Construction Period" shall be the period from the Construction Commencement
Date to the Construction Completion Date, as such period may be extended as provided
for in this Contract.
"Contract" shall mean this Contract, including atl exhibits and documents
incorporated herein and all amendments, supplements, or modifications made by
addenda and/or change orders,
"Contract Documents" shall mean all documents, Pricing Proposal, agreements,
submittals, exhibits, specifications, or rules directly included or incorporated into this
Contract.
"Contract Price" shall be the total construction cost of the Facility as specified in
Line H of Exhibit I of the Pricing Proposal.
"Contracting Officer" shall mean the Director of the Department of Finance of the
County.
"Contractor" shall mean a corporation duly organized and existing under and by
virtue of the lawsand authorized to do business in the State of Hawaii.
"Contractor Indemnified Parties" shall mean the Contractor, its parent
companies, their affiliates, lenders, and subcontractors, the Guarantor, their successors
and assigns and the respective officers, directors, employees and agents of such
persons.
"Finance Director" shall mean the Director of the Department of Finance of the
County who is the "Contracting Officer" for this project.
"Director of Environmental Management" shall mean the Director of the
Department of Environmental Management of the County or the Chief of the Solid
Waste Division of the Department of Environmental Management.
"En rgv" shall mean any form of energy generated at the Facility including but
not limited to electrical energy, hydrogen fuel, and methane.
"Facili "means the Municipal Solid Waste Reduction Facility, and all related and
appurtenant structures and equipment that are used to process Municipal Solid Waste
and Other Materials into Energy and/or Recovered Materials.
"Fiscal Year" shall mean the Fiscal Year of the County which begins on July 15t
of each year and ends on June 30th of the succeeding year, except that the first Fiscal
Year of this Contract shall be the period from the date on which the Contract shall
become effective to the following June 30th and the last Fiscal Year of this Contract
shall be the period from the July 1st preceding the Contract Completion Date to the
Contract Completion Date.
"Force Maieure" shall mean any act, event or condition which has had, or may
reasonably be expected to have, a material adverse effect on the rights or obligations of
the parties under this Contract, or on the Facility or the Site, or on the modification,
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX B ~ PAGE 7 OF 52
PROTOTYPE CONSTRUCTION CONTRACT
operation, ownership, or possession thereof or which results in a partial or total
curtailment of material services hereunder. Such acts, events or conditions shall be
beyond the reasonable control of the party relying thereon as justification for not
performing an obligation or complying with any condition required of such party under
this Contract and shall include, but are not limited to, the following:
a. an Act of God such as a hurricane, earthquake, flood, landslide, lava flow,
lightning, abnormal storm, tornado, tsunami, impassable roadways or other
cataclysmic phenomena of nature;
b. fires and explosions as a result of sabotage or other catastrophic disasters;
c. epidemics;
d. an act of the public enemy, war, blockade, insurrection, riot, civil disorder
or disturbance, or similar occurrence;
e. governmental preemption of materials in connection with a national
emergency;
f. power or other utility failure;
g. delays of subcontractors or suppliers solely as a result of a Force Majeure
event to the extent that substitute supplies, equipment or services are not
reasonably available;
h. strikes or walk outs except as set forth in Section 8.4 of this Contract;
i. the order, judgement or other official governmental action of any federal,
state, local or foreign court, administrative agency, governmental office or
body; or the suspension, termination, interruption, delay in renewals or
delay in approval by governmental authority of any permit, license, consent
or authorization resulting in a material change concerning or affecting the
obligations of the parties under this Contract except if caused by the
negligence and/or fault of the Contractor, The contesting or failure to
contest of any such actions, in good faith, shall not be considered as
overriding any event of Force Majeure; any material change in, or material
change in interpretation or any announced, intended or expressed change
by governmental authority of any federal, state, or local law, ordinance,
code, regulation or court order from those as interpreted or otherwise in
effect on the date of submittal of the Pricing Proposal resulting in a
material change concerning or affecting the obligations of the parties under
this Contract, except if caused by the fault and/or negligence of the
Contractor. The contesting or failure to contest any such actions, in good
faith, shall not be considered as overriding any event of Force Majeure;
"Guaranteed Capacity" shall mean the minimum throughput capacity specified by
the Contractor in the Pricing Proposal.
"Guaranteed Processing Cost" shall mean the cost for processing of Municipal
Solid Waste and Other Materials into Energy and/or Recovered Materials, guaranteed
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX B ~ PAGE 8 OF 52
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with expertise in the processing of Municipal Solid Waste (and, if applicable for the
Contractor's process, Other Wastes) mutually selected pursuant to Section 14.15, by
1 the County and the Contractor to perform services required by this Contract.
"Minimum Guaranteed Supply" shall mean at least 45,625 tons per year of
Municipal Solid Waste to be delivered by the County to satisfy the Contractor's
Minimum Guaranteed Capacity.
"Municipal Solid Waste" (MSW) shall mean that garbage, trash, rubbish and
refuse normally disposed of by and collected from residential, commercial, military,
institutional and industrial establishments within the County, which may include but not
be limited to leaves, twig, grass and plant cuttings, branches or tree trunks not in excess
of five feet long or larger than nine inches in diameter, paper, plastics, ferrous and non-
ferrous metals, glass, discarded personal property such as bicycles and baby carriages
and other constituents that normally appear in household refuse, certain wastes which
are difficult to process such as leather or automotive and small vehicular tires, provided
large quantities of such wastes are not included within any one truckload, but which can
be processed in small quantities when mixed with other MSW, commercial waste shall
include treated lumber, sludges such as tank bottoms having calorific value and other
commercial, military, institutional and industrial waste which is presently being landfllled.
Wastes in quantities and concentrations which require special handling in their
collection and/or processing and disposal such as bulky items and junked automobiles
will also be delivered to the Facility. Junked automobiles will continue to be delivered at
the scrap metal yard. An exhibit shall be attached to this Contract which provides in
general conditions, the quantity and characteristics of MSW which is expected to be
delivered to the Facility.
' "Notice to Proceed" means the written notice issued by the County to the
Contractor designating the official date to be used as the Construction Commencement
Date.
"Officer in Charge" means the Director of the Department of Environmental
Management of the County of Hawaii.
"Operating Contract" shall mean the contract between the Contractor and the
County, which shall commence on the Commercial Operations Date, for the operation
and maintenance of the Facility.
"Other Wastes" means other materials as approved by the County, for which the
Contractor has the sole responsibility to obtain and deliver to the Facility.
"Performance Guarantees" shall mean the quality and quantity guarantees set
forth in Exhibit C of this Contract, as adjusted and as provided for in this Contract and in
the Operating Contract.
"Performance Tests" shall mean the performance tests specified in an exhibit
attached to this Contract.
"Person" shall mean any individual, entity, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, or government (or any agency
or political subdivision thereof).
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"Pricing Proposal" shall mean the pricing proposal submitted by the Contractor in
pursuant to this RFP, dated
"Recovered Materials" shall mean the final, non-hazardous, marketable product
recovered from the processing of Municipal Solid Waste and Other Materials, as
provided in this Contract.
"Recovered Materials Revenues" shall mean any revenues derived from the sale
of Recovered Materials.
"Reimbursable Expenses" shall mean that component of the Service Fee
representing known expenses subject to reimbursement as set forth in this Contract
including:
a. premiums for insurance required pursuant to Article XIII which for the first
three (3) years of operation shall be guarantee and thereafter paid in
accordance with the terms and conditions of the Contract Documents;
b. additional taxes (other than income taxes based on net revenues),
assessments, or payments in lieu thereof, which are lawfully imposed on
the Facility or the operation after the date of submittal of the Pricing
Proposal;
c. costs of utility services for water, gas, oil, electrical power and sewage, as
applicable, provided the annual quantities for water, power and sewage as
specified in the Contractor's Pricing Proposal are not exceeded and the
cost are invoiced and paid based on actual quantities used as metered by
the Utility.
"Service Fee" shall mean the annual fee to t>e received by the Contractor for
performing Beneficial Material Reuse Services as established in Article VII of the
Operating Contract.
"Service Fee Surcharge" shall mean any amounts earned by the Contractor for
additional services as provided in Article VII of the Operating Contract, which shall be
paid monthly as provided in Article VII of the Operating Contract.
"Site" shall mean the land on which the Facility is located and described by the
metes and bounds in an exhibit attached to this Contract.
"Substantially Comalete" shall mean construction of the Facility is complete in all
material respects, and all relevant equipment has been delivered and installed.
"Ton" shall mean two thousand (2,000) pounds.
"TPY" shall mean Tons Per Year.
"Week" shall mean a seven (7) day period commencing at 12:01 am. on Monday
and ending at midnight on the following Sunday.
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PROTOTYPE CONSTRUCTION CONTRACT
by the Contractor in the Pricing Proposal, which is adjusted in accordance with the
terms of the Operating Contract and which includes in ft all costs in the Pricing Proposal
such as:
a. the costs of invoicing and mailing invoices (and required copies thereof) for
amounts owed by the County, by private haulers, and by the purchasers of
Energy and/or Recovered Materials;
b. engineering, audit, legal, and other expenses directly related to
administration, operation, maintenance, and repair of the Facility;
c. if applicable, the costs associated with processing of any Other Wastes
required by the Contractors process and the disposal of unusable residues
from such Other Wastes including hauling and disposal fees;
d. costs of employee compensation including salaries, wages, and other
compensation of officers and employees plus applicable overhead and
payment to pension, retirement, health and hospitalization funds and other
insurance, including self-insurance, for the benefit of employees;
e. costs of maintenance, repairs and replacements consistent with
reasonable and prudent contract operator practices, and all maintenance,
repairs and replacements required as a result of Contractors negligence
andlor fault, occurring during the term of this Contract;
f. costs of equipment, materials, and supplies used during the term of this
Contract, including ordinary and current rentals of equipment or other
property;
g. the costs of marketing Energy and/or Recovered Materials including
hauling and shipping;
h. the costs and expenses of general administrative overhead of the
Contractor allocable to the use and operation of the Facility;
i. all other costs and expenses of administering, operating, maintaining, and
repairing the Facility in the routine normal course of business;
j. any profits and mark-up for performing the above functions; and
k. the Capital Costs and the costs and expenses of financing the construction
of the Facility;
I. all taxes, including the Hawaii General Excise Tax, required to be paid as a
result of services rendered by the Contractor in fulfilling its obligations
under the Contract Documents.
"Guarantor" shall mean the person or persons who guarantee all or any part of
the performance obligations contained in This Contract, as set forth in Exhibit D of this
Contract.
"Indeaendent Third Partv" shall mean the consulting engineer or engineering firm
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ARTICLE II
CONTRACT DOCUMENTS
Section 2.1 CONTRACT DOCUMENTS. The following documents, or, with
respect to Exhibit I, the specified portions as noted and amended therein, are hereby
incorporated into and made a part of this Contract:
a. the Contractors Proposal (Including best and final offer).
b. all listed exhibits
c. Any addenda to the RFP.
d. Specification section of the RFP.
e. Special Provisions section of the RFP
f. General Terms and Conditions for Goods and Services dated July 1, 1994.
g. General Requirements and Covenants of the Department of Public Works
dated July, 1972 (or latest edition).
h. Standard Specifications for Public Works Construction dated Sept., 1986.
i. Standard Details for Public Works Construction (latest edition).
Section 2.2 ORDER OF PRECEDENCE OF DOCUMENTS. In the event of
conflict among the provisions of documents comprising this Contract, the order of
precedence shall be as follows:
a. this Contract.
b. all listed exhibits.
c. The Contractor's Best and Final Offer
d. the Contractors Proposal.
e. Any addenda to the RFP.
f. Specification section of the RFP.
g. Special Provisions section of the RFP
h. General Terms and Conditions for Goods and Services dated July 1, 1994
i. General Requirements and Covenants of the Department of Public Works
dated July, 1972 (or latest edition).
j. Standard Specifications for Public Works Construction dated Sept., 1986
k. Standard Details for Public Works Construction (latest edition).
ARTICLE III
TERM OF CONTRACT
Section 3.1 TERM OF CONTRACT. This Contract shall be effective as of the
date of execution by the Mayor and shall have a term ending on the Construction
Completion Date or date of termination of this Contract.
Section 3.2 SURVIVAL. Notwithstanding the foregoing, the following sections of
this Contract shall survive the Construction Completion Date or termination date in
accordance with their respective terms. Said sections include, but are not limited to
sections: 4.1, 4.7, 5.5, 5.10, 7.6, 9.9, 9.12, 10.1, 10.2, 10.3, 11.1, 11.2, 11.3, 11.4, 11.5,
11.6,12.3 and 14.8. To the extent that any third party claims are unresolved as of the
Construction Completion Date, sections of this Contract addressing such claims shall
also survive the Construction Completion Date or termination date until their final
disposition.
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' ~ ARTICLE IV
SITE
Section 4.1 RIGHT OF USE AND OCCUPANCY. The County will provide the
Contractor with full and unrestricted access to the Site as required for construction and
operation of the Facility for a period, commencing on the date of this Contract, of not
less than twenty (20) years from the Commercial Operations Date unless this Contract
is terminated earlier. Provided the County and the Contractor have reached agreement
to continue operations, the Contractor shall be provided with the same access rights for
a minimum of an additional ten (10) years beyond the initial twenty (20) year period. The
County hereby covenants and agrees that such access will provide the Contractor with
the access reasonably necessary to accomplish the Beneficial Material Reuse Services
contemplated by this Contract.
Section 4.2 EASEMENTS. The Contractor shall obtain all easements outside the
fence line whether temporary or permanent, necessary for Contractor to construct,
operate and maintain the Facility at the Site and include the cost of such easements in
the Contract Price. No adjustment shall be made to the Contract Price for easements
not included in the Pricing Proposal. Notwithstanding the foregoing, the County grants
to the Contractor unrestricted non-exclusive rights to the use and enjoyment of all
easement rights that benefit the Site and are held by the County, provided that such use
by the Contractor shall not disrupt the operation of the County and others also in
operation at the site.
Section 4.3 OFF-SITE SERVICES AND UTILITIES. To the extent not otherwise
provided by utility companies or agencies, the Contractor shall provide for installation of
off-site services and utilities, both temporary and permanent, necessary for the
construction, operation and/or maintenance of the Facility at the Site. All such work shall
be in accordance with the requirements of local authorities and agencies and utility
companies. Temporary services and utilities shall be removed on or before the
Construction Completion Date and the area restored.
Section 4.4 LANDSCAPING OF THE SITE. Existing landscape shall be
preserved wherever practicable in the construction. The Contractor shall landscape the
Site in accordance with the Specifications set forth in Exhibit L and the Pricing Proposal.
Section 4.5 ROADS AND PARKING FACILITIES AT THE SITE. The Contractor
shall provide all roads within the Site as may be required for the construction, operation
and maintenance of the Facility. The Contractor shall provide for on-site parking
facilities in conformance with the Land Use Ordinance of the County of Hawaii.
Section 4.6 This Section Not Used
Section 4.7 LIENS AND ENCUMBRANCES AGAINST SITE AND/OR FACILITY.
The Contractor shall discharge, by bond or otherwise, any lien or encumbrance of any
type which may attach to the Site arising out of the operations of the Contractor. The
Contractor further agrees to discharge, by bond or otherwise, any lien or encumbrance:
a. which may be filed against the Site and/or Facility by any of the
Contractors subcontractors or suppliers, or
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b. which may arise out of the operations of the Contractor which are related
or unrelated to its performance of this Contract.
The County shall keep the Site and the Facility free from any and all liens and
encumbrances that may be the result of any act or failure to act on the part of the
County, its employees, agents, representatives, contractors, licensees, or permittees.
Section 4.8 RIGHTS OF COUNTY AND OTHERS TO INSPECT SITE. The
County, and its duly authorized agents, servants, employees and invitees and, to the
extent of Their legal authority, the representatives of any governmental or regulatory
agency having jurisdiction over the design, construction, shakedown, and testing of the
Facility shall have the right of access to the Site for the purpose of inspecting the Site
and the Facility at any time during the Contractors normal business hours, provided,
however, that all such Persons shall be informed that such visits are to be conducted in
such a manner as to cause minimal interference with the Contractor's operations. Prior
to any such visit, such Person, unless otherwise authorized by law, shall give
reasonable notice to the Contractor of the numbers and-identities-of such personnel and
the length of time they are expected to be at the Site. In connection with such visits, the
County agrees on behalf of itself and of its agents, servants, employees and invitees to
comply with all reasonable requirements of the Contractor which may include a
requirement that each individual visiting the Site shall sign a statement assuming the
risk of such visit and that, pursuant to Article XI, any confidential mailer of the Contractor
shall not be disclosed or used other than for the purpose for which it was furnished. The
Contractor may, by mutual agreement with the County, restrict the areas to be visited.
Section 4.9 SECURITY AT SITE. The Contractor shall be responsible for all the
security at the Site at all times. As part of the construction of the Facility, the Contractor
shall install a perimeter fence with sufficient locked gates around the Facility to provide
adequate access for labor, equipment and materials to construct and operate the
Facility. Employee parking during construction shall be restricted to areas outside the
perimeter fence. Such fence may form a part of the perimeter of the H-POWER site.
The fence shall be minimum eight (8) feet in height, chain link type, or constructed of
other materials and type subject to County approval.
ARTICLE V
DESIGN OF FACILITY
Section 5.1 DESIGN OF FACILITY. The Contractor shall commence with the
design of the Facility to the extent necessary for acquisition of all permits that must be
obtained to construct the Facility and to obtain an accepted Environmental Impact
Statement (EIS"). The Contractor will use commercially reasonable efforts to obtain all
such permits and the acceptance of the EIS within 365 days after the Award of Contract
Date as such date may be extended as provided for in this Contract. The Contractor
shall complete the design after the Construction Commencement Date in order to permit
the completion of the design, construction, shakedown, and testing of the Facility by the
end of the Construction Period. The Contractor shall provide an integrated design for
the entire Facility in accordance with this Contract and the Operating Contract. The
design shall take into consideration the requirement that the Facility may be operated
under a ten (10) year extension, beyond the initial term of the twenty (20) year operating
period, subject to appropriate maintenance and/or replacement of parts (including
structural elements of the Facility which may significantly rust and corrode during such
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX B ~ PAGE 14 OF 52
PROTOTYPE CONSTRUCTION CONTRACT
initial twenty (20) year term provided, however, such design consideration shall not in
any event extend or modify the Contractors warranties and guarantees specified in this
Contract.
In the course of designing the Facility the Contractor shall, directly or through
others, perform and/or furnish the services, including, but not limited to, the following:
a. prepare architectural and engineering plans, designs and specifications,
site plans, building plans, process flow diagrams, equipment layout plans,
piping, electrical and instrument diagrams, basic engineering design data,
utility needs, equipment procurement, delivery and installation schedules
and project schedules showing completion dates for various phases of the
construction of the Facility, which shall take into account the following:
(1) The County will supply Municipal Solid Waste at a rate of tons
per week minimum to tons per week maximum.
(2) Deleted.
(3) The Contractor may process Other Waste, in accordance with the
terms and conditions of the Contract Documents provided such
processing will not decrease the Guaranteed Capacity for Municipal
Solid Waste;
(4) The Contractor's plans and specifications as provided in Exhibit E for
receiving and processing Municipal Solid Waste and/or Other Waste
at the Facility;
(5) The Contractors ability to design and construct the Facility so that the
storage, and processing of received materials is completed within
enclosed vessels, tanks, troughs, etc. which when opened during
operations are placed under negative pressure and exhausted to the
Facility air pollution control system. Points of transfer and other odor
emitting locations shall be provided with adequate exhaust ducts
connected to the air pollution control system. When and wherever
materials are moved or transported either by conveyor, elevator, wheel
loader, etc., the material shall be moved or transported in a manner so
as to avoid spillage. All floor surfaces in areas where spillage of
materials can occur shall be designed and constructed to allow for ease
of cleaning including wash-down of both floors and equipment to the
Facility sewage system;
(6) Not Used
(7) All enclosed equipment and buildings shall be exhausted to the Facility
air pollution and odor control system, which shall be designed to provide
continuous operation in conformance with all permit requirements so as
not to be in violation during periods of scheduled and unscheduled
maintenance;
(8) The air pollution/odor control system shall be designed, constructed and
operated to comply with all terms and conditions of the Facility's Air
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX B ~ PAGE 15 OF 52
PROTOTYPE CONSTRUCTION CONTRACT
Permit issued by the Department of Health (DOH") State of Hawaii.
Notwithstanding any other provision to the contrary in this Contract, the
' County will be not be responsible for obtaining all required air permits
for the Facility. In addition, emissions from the Facility shall not result in
nuisance odors at or beyond the Facility property boundary. This is to
include, but is not limited to, ammonia, hydrogen sulfide and other
odorous substances, such as reduced sulfur and organic compounds.
There shall be no fugitive odor emissions; all odorous materials and
processes shall be contained and treated to eliminate or reduce odors to
a level that does not create nuisance conditions at the property
boundary or off-site in the surrounding community. The dilution to
threshold (DR) concept and odor panels may be used as guides in the
design and operation of the air pollution control process. However, the
occurrence of nuisance conditions will be the ultimate determinant of
adequate odor control. Failure to prevent nuisance odor conditions shall
result in closure of the facility until corrective measures have been
taken. Such failure shall be considered Contractor fault. Under no
circumstance, excluding willful negligence, will the County be
responsible for any Contractor cost, liabilities, penalties, etc. associated
with the Contractors failure to meet permit requirements or control
nuisance odors at or beyond the Facility property line. The Contractor
shall be responsible for establishing background odors as part of its
Environmental Impact Statement preparation;
(9) The Contractor shall provide all emergency power as required to
assure continued operation of the Facility, which at a minimum shall
power the air pollution control operations;
(10) Contractor's Performance Test procedures set forth in Exhibit F shall
incorporate (i) the requirements of the DOH Air Permit, and (ii)
sampling requirements to assure that Recovered Materials meets
the requirements of all laws, permits, regulations orders etc.; and
(11) The Contractors understanding of the quality of Municipal Solid
Waste as provided for in Exhibit B and its ability to design the Facility
so that corrosive environments are protected to assure the Facility
buildings, equipment and structural elements are capable of being
maintained or replaced in accordance with the conditions of the
Contract Documents.
(12) The Contractor shall provide one hundred percent (100%)
redundancy for all odor control equipment, including but not limited
to pumps, blowers, scrubbers and oxidizers, so that, at all times,
three hundred sixty-five (365) days per year, the requirements of
Section 5.1 a (8) can be met. The Contractor shall provide for
emergency onsite power generation equipment to ensure continued
operation of the Facility odor control system during power failures.
b. perform all other architectural and engineering design work required for the
Facility in its entirety;
' c. prepare a tabulation of the various effluents and air emissions from the
RFP 2146 ~ WASTE REDUCTION TECHNOLOGY ~ APPENDIX B ~ PAGE 16 OF 52
PROTOTYPE CONSTRUCTION CONTRACT
Facility expected as a result of processing Municipal Solid Waste and/or
Other Waste, identifying sources of effluents and air emissions from
various phases of operation of the Facility and the types and estimated
compositions of the various effluents and air emissions and the methods of
treatment and/or disposal;
d. provide complete dispersion modeling of air discharges from the Facility
required to secure any air or operating permit;
Section 5.2 SUBMISSION OF UPDATED AND CORRECTED PROGRESS
SCHEDULES BY CONTRACTOR. Within forty-five (45) calendar days after the Award
of Contract Date, the Contractor shall submit to the County a progress schedule
covering all work to be performed by the Contractor under this Contract. The progress
schedule shall allow for the County's review of plans pursuant to Section 5.4 and shall
provide for normal contingencies arising out of delays (other than Force Majeure) due to
inclement weather, shipping, and scheduling difficulties. The Contractor shall use its
best efforts to avoid such delays but shall use its best judgement to allow for the
possibility of such delays in its progress schedule. Such progress schedule shall be
based on the critical path method (CPM) form and shall show the order of work, the
dates upon which work will begin on the several salient features thereof and the
contemplated number of days for and dates of completion. Such progress schedule
shall provide for the completion of all work within the time provided for in this Contract
and shall establish the order of intended progress of work and shall contain a network
diagram and activity listing. If the CPM schedule is not accepted by the County, it shall
be revised as agreed by the parties or any dispute shall be submitted to the
Independent Third Party for resolution. Major scheduling modifications are not
anticipated; however, should such modifications be necessary, the Contractor shall
provide the County with the reasons for them. Immediately following the end of each
calendar month during the Construction Period, the Contractor shall deliver three (3)
updated Progress Schedules to The County if:
a. any completion date on the critical path has changed by more than ten (10)
calendar days or
b. the critical path has changed to another path because of delays in work on
such path.
At all times, the schedule shall represent the Contractor's plan for orderly
completion of the work.
Section 5.3 CHANGES IN DESIGN. The Contractor at its expense may change
the design if such change, together with all other changes from The design will not:
a. cause the Facility to be materially different from the Facility as proposed by
the Contractor and agreed to by the County after negotiation of the revised
contract requirements;
b. have a material adverse effect on the ability of the Facility to perform as
anticipated; or
c. cause cost increases, unless such cost increases are approved by the
County.
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PROTOTYPE CONSTRUCTION CONTRACT
Notice of any such proposed change shall be delivered to the County, and such
change shall become effective unless the County, within fifteen (15) days after receipt of
such notice, unless the County gives notice to the Contractor of its determination that such
change does not meet the limitations hereinabove or, that it does not approve of such
change. If the Contractor disagrees with the County's determination, the disagreement shall
be resolved in accordance with the procedures specified in Section 14.15.
Within the limitations hereinabove, the Contractor at its expense may make changes
in the layout of the Facility at the Site and its foundation as necessary to reflect actual
conditions encountered at the Site or to provide for a more effective design of the Facility.
Any changes necessitated by the discovery of historical or archaeological finds or
underground obstructions, faults, anomalies or unknown features which were not and
would not have been revealed by the completion of reasonable Site and soil investigations
at the Site in accordance with standard archaeological and engineering practices in the
State of Hawaii shall be made by the Contractor and the Contract Price, and/or
Construction Period adjusted accordingly as provided in Section 10.2. Such adjustments
shall not be made nor the Contractor relieved of its obligation to perform under this
Contract by reason of archaeological and soil conditions encountered which would have
been revealed by the completion of such investigations or by reason of changes made by
the Contractor.
Section 5.4 REVIEW OF DESIGN PLANS FOR COMPLIANCE WITH THIS
CONTRACT. All plans, drawings, specifications, schedules, etc., relating to the design of
the Facility shall be made available for review by the County. Upon completion of thirty
percent (30%) and ninety five percent (95%) of the design of the Facility or any major part
1 thereof the Contractor shall submit to the County for its review six (6) copies of design
plans and specifications, drawings pertaining to the installation and performance of
equipment and to the construction of the Facility (excluding detailed fabrication drawings),
and operation and maintenance manuals and similar documents, hereafter collectively
referred to as the design documents. For the Facility at the Site, the review shall be limited
to determining whether or not the terms, articles, elements, components, and features set
forth in the Contractors Qualifications and Proposal, Pricing Proposal and the
Specifications set forth in an Exhibit of This Contract have been incorporated into the
design. It is understood that in such reviews the Contractor's right of design preference
shall be respected. The review shall not be deemed to have considered the sufficiency or
adequacy of the design or the engineering judgement employed by the Contractor nor shall
the review act as a waiver of liability or relieve the Contractor of its obligations to perform
under this Contract. The reviews shall be completed and the Contractor notified of the
results of such reviews within thirty (30) days from the date that the required documents are
submitted. The thirty (30) day review period is included in the Construction Period.
If the County concludes that the design is not as set forth in the Pricing Proposal and
in the Exhibit of this Contract or that the design plans or specifications fail to conform to any
reasonable interpretation of accepted engineering standards, then, within three (3) working
days after the Contractors receipt of notice of said disagreement, the County and
Contractor shall meet to resolve same. It is understood that such disagreement is limited to
the criteria set forth in This Article V and must have a material and adverse effect on The
construction or operation of the Facility and not be of a cosmetic nature or to require the
inclusion of new or different technology. If any disagreement arising from this section
1 cannot be resolved to the mutual satisfaction of the County and the Contractor, the
disagreement shall be submitted to the Independent Third Party for binding resolution. The
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PROTOTYPE CONSTRUCTION CONTRACT
Independent Third Party shall, within thirty (30) days after submission, render its decision
with respect to said disagreements and it shall be binding upon the parties. If the
Independent Third Party shall also determine whether, and by how many days (if any), the
Construction Period shall be extended as a result of a disagreement between the parties.
The Contractor may submit for review, at times different from that specified
hereinabove, the design documents applicable to specific portions of the work so that it
may proceed with procurement of the equipment and construction of those portions
without delaying for the specified required reviews. The Contractor shall, however,
include such portions in its submittal for the specified overall reviews. Terms herein,
applicable to the specified reviews, are also applicable to reviews of partial submittals.
Section 5.5 DESIGN AND CAPACITY. In designing the Facility, the Contractor
shall ensure that the Facility shall meet the Minimum Guaranteed Capacity requirement.
Section 5.6 COMPLIANCE WITH LAWS. In the event of any changes in, or any
change in interpretation of, or any adoption of new federal, state or local laws,
ordinances, codes, regulations, or court orders, consent decrees, consent orders,
consent agreements, judgements, decrees, writs, determinations, or any like action of
any government authority having jurisdiction applicable to any activities associated with
the Facility shall occur or become effective after the submittal of the Pricing Proposal,
the Contractor shall use all reasonable efforts to comply with such changes or adoptions
which apply to the design, construction, shakedown, testing or operation and
maintenance of the Facility. If any such changes or adoptions shall occur or become
effective after the submittal of the Pricing Proposal and shall cause an increase (or
decrease) in the cost of or the time required for the design, construction, shakedown,
and testing of the Facility, an adjustment shall be made to the Contract Price, and/or the
Construction Period pursuant to Article X.
Section 5.7 AGREEMENT TO USE SOUND CONSTRUCTION PRACTICES. In
the design of the Facility, the Contractor shall incorporate sound construction practices
utilizing methods and equipment of proper dependability. The Contractor shall perform
all design work in accordance with established engineering principles and practices and
all applicable code requirements.
Section 5.8 AGREEMENTS WITH GOVERNMENTAL AGENCIES AND UTILITY
FIRMS. The Contractor shall obtain and furnish to the County, copies of all agreements
with governmental agencies (other than the County) and utility firms relating to the
design and construction of the Facility, including without limitation, all understandings
between the Contractor and governmental agencies relating to interpretations of laws,
rules, or regulations in effect as of the date of submittal of the Pricing Proposal and as
may be available.
Section 5.9 SIGNATURES FOR CONTRACT DRAWINGS. The Contractor shall
obtain on the title sheet of the design plans the signatures of appropriate officials of all
governmental agencies which may be required by applicable federal, state, and local
laws, ordinances, codes, regulations, administrative procedures, and court orders
indicating that such agencies have reviewed and approved the plans which have been
prepared. The County will assist the Contractor in obtaining the required signatures.
' Each final plan shall. carry the signature and stamp of an individual registered
with the Hawaii Board of Registration of Professional Engineers if required by law.
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The County will cooperate with and support the Contractor in any and all actions
necessary or appropriate for the completion of the design, construction and testing of
the Facility in accordance with this Contract. This provision shall, however, not be
construed to transfer the responsibility for any delays from the Contractor to the County.
The approval of the plans, specifications and design computations shall not be
construed to relieve the Contractor of the responsibility for correcting any errors or
discrepancies in the plans, specifications and design computations which may become
apparent after approval has been given, nor shall the approval be construed to relieve
the Contractor of the responsibility for making the changes to the Facility necessary to
correct for such errors and discrepancies and to conform to all applicable code
requirements and established engineering principles and practices.
Section 5.10 DISPOSITION OF DRAWINGS. ORIGINAL SPECIFICATIONS.
AND MANUALS.
Upon completion of the construction of the Facility, copies of all plans, specifications
and manuals required for the operations and maintenance of the Facility shall be
provided by Contractor for retention at the Facility. The above documents shall have
incorporated in them any and all changes in The Facility, as actually constructed, which
differ from the design plans submitted to the County pursuant to this Article V. In
addition, one (1) set of reproducible tracings and three (3) copies of all such work
documents shall be furnished, at the expense of the Contractor, to the County. At the
request of the County, up to six (6) additional copies of all such plans, specifications,
and manuals shall be provided to the County at the expense of the Contractor for the
purpose of operation and maintenance instruction or as required to obtain and maintain
necessary permits, licenses, or authorizations. The County agrees not to disclose or
use confidential or proprietary information of the Contractor for any purpose other than
the construction and operation of the Facility.
ARTICLE VI
CONSTRUCTION OF FACILITY
Section 6.1 CONSTRUCTION OF FACILITY. The Contractor shall be
responsible for constructing the Facility in accordance with the terms and conditions of
this Contract.
The Contractor shall furnish and/or procure all services, labor, equipment,
materials and appurtenances necessary to construct the Facility in its entirety, all in
accordance with this Contract. Such services, labor, equipment, material and
appurtenances shall include, but not be limited to, the following:
(a) All equipment, materials and appurtenances required for the construction
and the operation and maintenance of the Facility.
(b) Engineering inspection at the plants of manufacturers material and
equipment as the Contractor deems necessary.
(c) All procurement and expediting services required for construction of the
Facility, including the scheduling of all shipments of materials and
equipment to meet Facility progress requirements, the muting, classifying
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and tracing of shipments, and in general, the taking of every reasonable
means to assure fulfillment of all delivery schedules including items of
material and equipment not furnished by the Contractor.
(d) Organization, planning, management, direction, supervision, and
responsibility for all construction operations necessary to complete the
Facility in its entirety, and the furnishing, as necessary for the performance
of construction work, of all construction facilities, temporary facilities and
services, construction labor and supervision, construction equipment, tools
and supplies.
(e) Handling and storage as required of all materials, supplies, machinery,
and equipment required for permanent and temporary construction.
(f) Performing all necessary field engineering, letting of subcontracts, and
direction and supervision of the work of subcontractors.
(g) The services of a construction staff which shall exercise supervision of all
construction and which shall include the services of suppliers service
engineers where required provided, however, that such assistance by
suppliers service engineers shall not relieve the Contractor of its
responsibility for providing proper supervision and technical services for all
phases of the construction of the Facility and for taking all necessary
precautions.
Section 6.2 SUBCONTRACTORS. The Contractor may, at its sole discretion,
subcontract all or portions of the work covered by this Contract, provided the Contractor
shall remain liable for any work so subcontracted. If any subcontractor defaults on its
contract, the Contractor shall make all reasonable efforts to enforce its rights under such
contract but such default shall not relieve the Contractor of its obligation to complete the
project in its entirety.
Section 6.3 CHANGES TO FACILITY DURING CONSTRUCTION. In the event that
there is a change to the Facility during construction, the parties shall assume the following
responsibilities:
a. Changes to Facility by Contractor. The Contractor may make changes which it
deems advisable during construction if such changes, together with all other
changes will not:
(1) cause The Facility to be materially different from the Facility as
proposed in the Pricing Proposal and/or Exhibit E as provided by the
Contractor and agreed to by the County;
(2) have a material adverse effect on the ability of the Facility to pertorm as
anticipated; or
(3) cause cost increases, unless such cost increases are approved by the
County.
' Prior to making any changes, the Contractor shall deliver notice of any such
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proposed change to the County. The Contractor may proceed with such change unless the
County, within fifteen (15) days after receipt of such notice, unless the County gives notice
to the Contractor of its determination that such change does not meet the limitations
hereinabove. If the County gives such notice and the County and the Contractor cannot
mutually resolve the differences within fifteen (15) days thereafter, the matter may be
referred to the Independent Third Party for binding resolution.
The Contractor may, at its own risk, make any change in the Construction pending
the resolution by the Independent Third Party. If the Independent Third Party agrees with
the County, the Contractor shall be responsible for making any corrections at its own time
and expense.
The Contractor shall schedule incorporation of any such changes to the Facility as
approved by the County.
(a) Changes to Facility Requested by County. The County may request changes
to the Facility which may add to or reduce the work to be performed by the
Contractor under this Contract. If any such changes add to or reduce the
costs and/or the time required to complete the Facility, the Contract Price,
and/or the Construction Period shall be adjusted pursuant to Article X. If any
such changes are requested by the County affect the Contractor's
guarantees, warranties and other obligations set forth herein, such
guarantees, warranties and obligations shall be modified pursuant to Article
X.
(b) Changes to Facility as the Result of Force Maieure. Changes due to Force
Majeure, which may add to or reduce the work to be performed by the
Contractor under this Contract are the responsibility of The Contractor. If
any such changes add to or reduce the costs and/or the time required to
complete the Facility, the Contract Price shall not be changed, however,
the Construction Period shall be adjusted pursuant to Article X. If any such
changes due to Force Majeure affect the Contractors guarantees,
warranties and other obligations set forth herein, the County may permit
such guarantees, warranties and obligations shall be modified pursuant to
Article X.
(c) If any changes to the Facility are required by the County, within ninety (90)
days from sending or receiving notice of such required change, furnish the
County with a statement of work and impacts, including:
(1) a firm bid for design and construction;
(2) a projected completion schedule;
(3) any adjustment to the Contract Price;
(4) any adjustment to the Service Fee or Service Fee Surcharge;
(5) any adjustment to Recovered Materials Revenues;
(6) any adjustment to the established Performance Guarantees; and
(7) the costs of developing the statement of work and impacts, which
costs shall constitute Reimbursable Expenses.
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The County shall have the right to review, negotiate, and approve such change
within thirty (30) days of submittal by the Contractor. In the event the County and the
Contractor fail to agree to any material element of the change, such as scope of work,
design and construction costs, or adjustment to the Contract Price, Service Fee and
Service Fee Surcharge, the matter will be referred to the Independent Third Party for its
decision.
The costs of making such changes shall constitute a Capital Cost and shall be
paid for by the County. The Contractor shall not unreasonably refuse to make changes
and where such changes are considered to be unreasonably refused, the County may
refer the matter to the Independent Third Party for its decision.
The County reserves the option to require changes in the work to be provided
and paid for by competitive bids, by negotiated agreement, or by force account (time
and materials), all in accordance with laws, rules and regulations applicable thereto.
The Contractor shall provide an accounting of all such cost to the level of detail
acceptable to the County including but not limited to a breakdown by craft or positions of
all direct and indirect labor cost, all fringes, all material and equipment cost
substantiated by low price bid or competitive negotiations, and unit price cost as
applicable. The same level of detail required of the Contractor shall' be provided by
subcontractors.
Section 6.4 PROGRESS PHOTOGRAPHS. During The Construction Period, the
' Contractor shall furnish the County with two (2) sets of monthly progress photographs
showing the general status of construction. One set shall be submitted at the end of
each month and the other retained by the Contractor and mounted in an album that
shall be turned over to the County at the completion of construction. Photographs shall
have labels giving the dates (unless already on the photograph) and a brief description
of their contents.
Section 6.5 PERMITS AND LICENSES. The Contractor shall, at its expense,
obtain all permits and licenses required by any federal, state or local governmental unit
or agency having jurisdiction over the design, construction and testing of the Facility or
the use of the Site for such purpose.
Section 6.6 CONTRACTORS SOLE RESPONSIBILITY FOR ENERGY AND/OR
RECOVERED MATERIALS. It is expressly understood that under no circumstances will
the County be responsible any permit, license, approval, etc. required for the
application, marketing, sale, use, etc. of the Energy and/or Recovered Material from the
Facility. The Contractor shall assume all responsibility for assuring that all Energy
and/or Recovered Material is suitable for beneficial reuse and meets the requirements
of All Laws for delivery and use. All risks associated with the quality of or the sale or
use of the Energy and/or Recovered Material shall not be considered an event of Force
Majeure and shall be the sole--responsibility of the Contractor. Any actual or effective
prohibition or material restriction on the reuse of Recovered Materials that becomes
effective during the term of this Contract by County or State agencies that prohibits the
' Contractor from completing its responsibilities to provide Beneficial Material Reuse
Services as required in this Contract shall be treated as a condition of Force Majeure
unless such action was caused by the fault and/or negligence of the Contractor.
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6.7 COMPLIANCE WITH COUNTY CONSTRUCTION SPECIFICATIONS. All
construction work to be done by the Contractor under this Agreement shall be designed
and performed in accordance with: (i) the Standard Specifications for Public Works
Construction of the County of Hawaii, dated September 1986, as amended, and (ii) the
Standard Details for Public Works Construction of the County of Hawaii dated
September 1984, as amended, or latest editions of either.
6.8 EXECUTION OF THE AGREEMENT FOR THE SALE OF ENERGY AND/OR
RECOVERED MATERIALS. The contractor shall be solely responsible for executing all
agreements, documents, contracts etc for the sale of Energy. It is understood that such
agreement shall be executed prior to the Commencement of Construction.
ARTICLE VII
PERFORMANCE TESTING
Section 7.1 SHAKEDOWN OF FACILITY. As soon as any portion of the Facility is
ready, in the opinion of the Contractor, to commence the shakedown, the purpose of which
shall be to prepare the Facility for the Performance Tests, the Contractor shall promptly
notify the County in writing. The Contractor shall provide the County at least five (5)
business days notice as to the daily quantities of Municipal Solid Waste that the Contractor
deems necessary for shakedown of the Facility. Upon such notice for the shakedown of the
Facility at the Site, the County shall cause to be delivered such daily amounts of Municipal
Solid Waste as requested by the Contractor. In the event the County does not deliver or
process such Municipal Solid Waste then:
a. the Construction Period shall be adjusted day for day for any delay resulting
from such failure to deliver or process and the Contractor shall be paid the
actual costs of such delay by an adjustment of the Contract Price pursuant to
Section 10.2;
b. the Contractor shall be permitted to pursue any legal or equitable remedy to
compel delivery of such Municipal Solid Waste.
Should the County disagree with the Contractors documentation of such costs
and/or delay, the matter shall be submitted to the Independent Third Party for binding
resolution.
Section 7.2 CONDUCT OF PERFORMANCE TESTS AND CERTIFICATION OF
RESULTS. The Contractor shall conduct the Performance Tests as soon as practicable
after completion of shakedown. The Performance Tests shall be conducted in accordance
with Exhibit M.
a. Contractors Responsibilities. The Contractors responsibilities for the
Performance Tests include, but are not limited to, the following:
(1) The Contractor shall supply all materials (except Municipal Solid
Waste), labor, tools, gauges, and instruments necessary to conduct the
Performance Tests. The Contractor shall provide the necessary
' equipment, instrumentation, and other items to monitor and record,
during the test period, the system performance for purposes of verifying
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compliance with the Performance Guarantees set forth in Exhibit C and
any license and permit requirements. Those items which are necessary
to monitor the operations of the Facility on a permanent basis are to
remain. Specialty equipment provided on a temporary basis and
necessary only for the Performance Tests may be removed.
(2) In the event of temporary suspension of testing, the Contractor shall
protect all testing instruments and materials from damage.
(3) The Contractor shall assist the County in verifying compliance with
the Performance Guarantees of Exhibit C by providing information,
access, and other aid as reasonably required.
b. Notice of Municioal Solid Waste Requirements. The Contractor shall
provide the County at least five (5) business days notice as to the daily
quantities of Municipal Solid Waste that the Contractor deems necessary
for the Pertormance Tests of the Facility at the Site and the County shall
cause to be delivered such daily amounts of Municipal Solid Waste as
requested by the Contractor, If the County does not deliver the requested
amounts then:
(1) the Construction Period shall be adjusted day for day for any delay
resulting from such failure to deliver or process and the Contractor
shall be paid the actual costs of such delay by an adjustment of the
Contract Price all pursuant to Section 10.2; and
(2) the Contractor shall be permitted to pursue any legal or equitable
remedy to compel delivery of such Municipal Solid Waste.
Should the County disagree with the Contractors documentation of such
costs and/or time of delay, the matter shall be submitted to the
Independent Third Party for binding resolution.
c. Performance Tests. The Performance Tests, including retests, if any, shall
be conducted in conformance with requirements specified by all
governmental agencies that may have jurisdiction, such as, but not limited
to, the Federal Environmental Protection Agency and the Department of
Health of the State of Hawaii, and in the presence of representatives of the
County. Upon receipt of the Contractors certification of the results of the
Performance Tests, the County shall review such certification in order to
determine performance in accordance with the terms and conditions of this
Contract, The County shall notify the Contractor of its determination within
fifteen (15) working days after the receipt of such certification. If the County
and the Contractor cannot agree on acceptable completion of the
Performance Tests, the matter shall be referred to the Independent Third
Party for binding resolution. The Construction Completion Date shall be the
date of receipt of the Contractors certification if:
(1) such certification reflects that the Performance Tests results
demonstrate:
(a) that the Facility is capable of processing and disposing of
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' Municipal Solid Waste in accordance with the Performance
Guarantees set forth in an Exhibit to the Contract (which
capability must be at least that required in Section 7.3 hereof),
and
(b) that the Facility complies with Contractor's Plans and
Specification, or
(2) the County does not notify the Contractor within the times specified
above of the specific reasons for Contractor not having acceptably
completed the Performance Tests.
d. Disagreement on Acceptable Completion. In the event that the matter of
acceptable completion of the Performance Tests is referred to the
Independent Third Party upon failure of the Contractor and the County to
agree, the following shall apply:
(1) The Independent Third Party shall be required to deliver its decision
within sixty (60) days after the date of referral of the matter to it.
(2) During the period commencing on the date of receipt of Contractors
certification of the results of the Performance Tests and ending on
the date of receipt of the Independent Third Party's decision
(hereinafter referred to as the Decision Period"):
(a) The Contractor shall not be obligated to make payments of
any liquidated damages which it otherwise may have had to
pay during the Decision Period until after such decision.
(b) The Contractor shall use all reasonable efforts to operate the
Facility at the Site and cause beneficial reuse of Energy
and/or Recovered Materials. The County shall use all
reasonable efforts to cause the total daily quantity of Municipal
Solid Waste it has available to be delivered to that Facility.
(c) Notwithstanding anything set forth in Section 7.5 to the
contrary, the Contractor shall receive all revenues as may be
derived from the sale of Energy and/or Recovered Materials
during the Decision Period.
(3) In the event the decision of the Independent Third Party confirms the
Contractors assertion of acceptable completion of the Performance
Tests, then the Construction Completion Date shall be deemed to be
the date of receipt of the Contractors certification of the results of the
Performance Tests and the Contractor shall be entitled to payment
of the fees to which it should have been entitled for all Municipal
Solid Waste processed during the Decision Period.
(4) In the event the decision of the Independent Third Party does not
confirm the Contractors assertion of acceptable completion of the
Performance Tests, then:
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' (a) The Contract Completion Date shall not have occurred.
(b) The Contractor shall not be entitled to payment of any fees for
Municipal Solid Waste processed during the Decision Period.
(c) The Contractor shall, within thirty (30) days after receipt of the
Independent Third Party's decision, pay to the County such
liquidated damages pursuant to Section 9.4 and/or 9.5, as
may be applicable, that the Contractor would have been
required to pay had such payment not been excused pursuant
to Paragraph d.(2)(a) of this Section 7.2 plus interest from the
Construction Completion Date, as adjusted, to the actual date
of payment by the Contractor.
Section 7.3 COMPLETION OF THE PERFORMANCE TESTS AT LESS THAN
GUARANTEED CAPACITY. The Performance Tests shall be considered to be
conditionally acceptable and the Commercial Operations Date shall begin if the Facility
capacity demonstrated in the Performance Tests is at least eighty-five (85%) of the
Guaranteed Capacity. If the Facility is conditionally accepted at less than the
Guaranteed Capacity, the Contractor shall attempt to correct the Facility's performance
to the Guaranteed Capacity in accordance with Section 3.9 of the Operating Contract.
The Energy and/or Recovered Materials quality demonstrated in the Performance Tests
shall, however, always be of the quality guaranteed in Exhibit
Section 7.4 DELETED.
Section 7.5 REVENUES FROM ENERGY AND/OR RECOVERED MATERIALS
SALES DURING THE CONSTRUCTION PERIOD. The Contractor shall receive all
revenues from the sale of Energy or Recovered Materials during the Construction
Period.
Section 7.6 PERFORMANCE GUARANTEE. The Contractor guarantees that on
or before the Construction Completion Date (which may be extended as provided for in
this Contract), the Facility shall meet at least eighty five percent (85%) of the
Guaranteed Capacity and the Performance Guarantees in Exhibit C subject to
adjustment as provided in Section 7.3. If the Performance Tests results show that the
Facility has not achieved the eighty five percent (85%) of the Guaranteed Capacity and
the Performance Guarantees (as adjusted) during the Performance Tests, and provided
that the Contract has not been terminated by the Contractor or the County, the
Contractor shall:
a. within three hundred sixty-five (365) days from the scheduled Construction
Completion Date attempt to correct the Facility or components thereof by
adjustment or repair in place, by replacement of defective or inadequate
parts, or adjustment of the methods of operation of the Facility so that it will
be capable of achieving the guaranteed performance as adjusted; and
b. from the Construction Completion Date until the date that eighty five
percent (85%) of the Guaranteed Capacity and the Performance
Guarantees is achieved or until the effective date of any termination of this
Contract, the Contractor shall pay the damages in accordance with
Section 9.4.
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1 It however, the Contractor is unable to demonstrate the ability of the Facility to
fully meet eighty five percent (85%) of the Guaranteed Capacity or the Performance
Guarantees as adjusted solely because of The inability of the County to process or
deliver the required quantity of Municipal Solid Waste during the Performance Tests,
then the Contract Price and the Construction Period shall be adjusted.
Section 7.7 TEST EQUIPMENT. The Contractor shall provide, install and
maintain sufficient instrumentation or contract for such instrumentation to monitor and
control all processes and pollution control equipment installed at the Facility before and
during the performance testing. For and during the Performance Tests, the Contractor
shall perform or cause to be performed such monitoring and laboratory analyses as may
be required relating to the operation of the Facility. The Contractor shall cooperate with
the County and its designated agents and any governmental authority for
demonstrations of compliance with the requirements of this Contract and with all
federal, state, or local laws, ordinances, codes, regulations, or court orders.
ARTICLE VIII
FORCE MAJEURE
Section 8.1 INABILITY TO PERFORM OR DELAY IN PERFORMANCE BY
CONTRACTOR DUE TO FORCE MAJEURE DURING CONSTRUCTION PERIOD.
Notwithstanding any other provisions in this Contract to the contrary, if the Contractor shall
be unable to perform or shall be delayed in its performance of any of its obligations under
this Contract by reason of Force Majeure, then such inability or delay shall be excused and:
a. the time for completing the affected portion of the work to be performed
hereunder shall be extended for such reasonable period of time necessary
and warranted,
b. the Construction Period shall be adjusted pursuant to Article X of this
Contract; and
c. the Performance Guarantees may be adjusted accordingly, provided,
however, that none of the above shall relieve the Contractor of any liability for
the payment of any liquidated damages which the Contractor is required to
pay pursuant to Section 9.4 for delays occurring prior to, during, or
subsequent to the occurrence of an event of Force Majeure unless such event
of Force Majeure prevents the Contractor from completing that portion of the
work which is delayed and is causing the Contractor to incur liquidated
damages.
Section 8.2 INABILITY TO PERFORM OR DELAY IN PERFORMANCE BY
COUNTY DUE TO FORCE MAJEURE DURING CONSTRUCTION PERIOD. If the County
shall be unable to perform or shall be delayed in its performance of any of its obligations
under this Contract by reason of the occurrence of an event of Force Majeure, then the
County shall be excused from any failure or delay to perform as required herein, except
that delays in payment to the Contractor of any amounts due or becoming due shall not be
considered events of Force Majeure. If the County's inability to perform shall result in delay
of the Contractor or in the Contractor's inability to perform, Section 8.1 shall apply.
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' Section 8.3 NOTIFICATION OF AN EVENT OF FORCE MAJEURE. Notwithstanding
Section 8.1, no extension of time shall be granted to the Contractor and no adjustment to
the Construction Period shall be made unless a written application therefor, stating in detail
the event of Force Majeure, the effect to date and the probable future effect on the
performance of the Contractor under this Contract is filed by the Contractor with the County
within fourteen (14) calendar days after the commencement of the delay due to-the event of
Force Majeure. The number of days extension of the Construction Period for such Force
Majeure event, and if permitted by the County, any adjustment of the Performance Tests
and/or Performance Guarantees shall be determined from documentation submitted by the
Contractor, The documentation shall be complete with sufficient detail of labor, materials,
equipment, supervision, etc. in the format required by Section 63.d. and as is normally
submitted in the construction industry. In the event the County does not agree with such
documentation for the delay, the number of days of extension of the Construction Period if
any, the matter shall be referred to the Independent Third Party for binding resolution. No
such extension shall be deemed a waiver of the rights of either party under this Contract.
Section 8.4 STRIKES OF CONTRACTOR'S PERSONNEL. Notwithstanding
anything to the contrary in the foregoing, no event or action described in this Article VIII
with respect to strikes or other Contractor's labor problems shall be deemed to be
beyond the reasonable control of the Contractor it
a. it is found by a final adjudication of the dispute between the Contractor and
the pertinent collective bargaining unit by an arbitrator, by a court of
competent jurisdiction, or by an agency with statutory or regulatory
authority over such matters That such event or action was principally
i caused by the Contractors breach of the applicable collective bargaining
agreement and/or the Contractors refusal to negotiate in good faith; and
b. such event or action was fomented and/or perpetuated by the Contractor
for the purpose of interfering with, delaying or influencing a decision about
the Contractors performance under this Contract.
ARTICLE IX
DEFAULT; TERMINATION OF CONTRACT; LIQUIDATED DAMAGES;
BOND FOR FAITHFUL PERFORMANCE
Section 9.1 EVENTS OF DEFAULT BY CONTRACTOR. The occurrence of any
of the following at any time during the term of this Contract shall constitute an Event of
Default (herein an Event of Default") by the Contractor:
a. persistent or repeated failure of a material nature or refusal by the
Contractor to perform its obligations under this Contract unless such failure
or refusal is determined to have been caused by Force Majeure or an act
or Event of Default of the County; or
b. failure by the Contractor to meet Performance Tests pursuant to Sections
7.2, 7.3, and such failure continues for a period of three hundred sixty-five
1 (365) days from the scheduled Construction Completion Date, as may be
adjusted by Force Majeure, unless such failure is caused by an Event of
Default by the County; or
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c. failure by the Contractor to obtain The approval from governmental
authority to operate the Facility for the purpose of conducting the
Performance Testing or shutdown of the Facility by governmental authority
because the Facility is not in material and consistent compliance with the
requirements of any federal, state or local laws, ordinance, code,
regulation or court order or any interpretation thereof which were in effect
at the time of the Pricing Proposal; or
d. abandonment of the Site by the Contractor or the discontinuance by the
Contractor of the design, construction, shakedown and testing of the
Facility unless such discontinuance is caused by Force Majeure or an
Event of Default by the County; or
e. written admission by the Contractor that it is bankrupt, or the filing by the
Contractor of a voluntary petition under any bankruptcy or insolvency act,
or the consent by the Contractor of a voluntary petition under any
bankruptcy or insolvency act, or the consent by The Contractor to a court
appointment of a receiver or trustee for all or substantially all of its property
or business, or the making by the Contractor of any arrangement with or
for the benefit of its creditors involving an assignment to or composition
with a trustee, receiver or similar fiduciary, regardless of how designated,
of any portion of the Contractors property or business; or
f. the filing of an involuntary petition in bankruptcy under any bankruptcy or
insolvency act by a third party against the Contractor, which petition is not
discharged within sixty (60) days; or
g. the insolvency of the Contractor or the failure or inability of the Contractor to
pay its debts as and when they fall due; or
h. a default by the Contractor with respect to any obligation to any third party
which (i) may permit such third party, either immediately or following notice
and/or the passage of time, to accelerate the maturity of any obligation of the
Contractor, to assume control of the Contractor or to take possession of or
transfer or cause to be transferred to such party any material portion of the
assets of the Contractor and (ii) has a material and adverse effect on the
Facility; provided that The foregoing shall not be an Event of Default if such
event was caused by, and would not have otherwise occurred in the absence
of an event of Force Majeure or an Event of Default by the County; or failure
by the Contractor to pay the liquidated damages set forth in Section 9.4 hereof
for the forty-five (45) day notice period and any extensions thereof as
described in Section 9.3, if the Contract is not terminated by the County.
Section 9.2 EVENTS OF DEFAULT BY THE COUNTY. The occurrence of any of the
following events at any time during the term of this Contract shall constitute an Event of
Default by the County:
a. failure by the County to pay any undisputed amount payable and due under
this Contract within sixty (60) days after receipt of invoice unless such failure
is caused by Force Majeure; or
b. written admission by the County that it is bankrupt, or the filing by the County
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of a voluntary petition under any bankruptcy or insolvency act, or consent by
the County to a court appointment of a receiver or trustee for all or
substantially all of its property or business, or the making by the County of any
arrangement with or for the benefit of its creditors involving an assignment to
or composition with a trustee, receiver or similarly fiduciary, regardless of how
designated, of any material portion of the County's property or business; or
c. filing of an involuntary petition in bankruptcy under any bankruptcy or
insolvency act by a third part, against the County, which petition is not
discharged within sixty (60) days; or
d. insolvency of the County or the failure or inability of the County to pay its
debts as and when they fall due.
Section 9.3 TERMINATION ON OCCURRENCE OF AN EVENT OF DEFAULT. If
failure to make any payment due extends for sixty (60) days after receipt of invoice or if any
other Event of Default by either party shall extend for a period of forty-five (45) days after
receipt of written notice of such Event of Default from the non-defaulting party, then the
non-defaulting party may, at its option, terminate this Contract by delivering written notice of
such termination to the party in default and/or may institute such legal action or
proceedings or resort to such other remedies as it deems necessary; provided, however,
that the party not in default shall not terminate this Contract at the end of such forty-five
(45) day period if the party in default has commenced:
a. appropriate steps to correct such default and is diligently prosecuting same to
completion; and/or
b. Independent Third Party proceedings with respect to the default.
If the parties disagree on whether appropriate steps are being taken, the matter shall
be referred to the Independent Third Party for resolution. Should any Independent Third
Party decision be adverse to the party in default, the termination shall be effective on the
date of written notice of termination to the party in default and shall not prejudice any rights
of the non-defaulting party.
Section 9.4 LIABILITY OF CONTRACTOR FOR DELAY IN COMPLETION. The
Contractor shall complete the design, construction, shakedown and testing of the Facility
on or before the scheduled Construction Completion Date as adjusted. It is mutually
understood and agreed by and between the County and the Contractor that, for the
purpose of enforcing the liquidated damages provisions of this Contract only, time shall be
of the essence to this Contract and that in case of failure on the part of the Contractor to
fulfill its obligations under this Contract within the above specified period, as adjusted
pursuant to this Contract, the County will be damaged. It is further agreed that the amount
of such damages is difficult, if not impossible, to ascertain and prove, and, therefore, the
amount of such damages shall be Two Thousand, Five Hundred Dollars ($2,500) per day
for each of the first sixty (60) days of delay beyond the scheduled Construction Completion
Date and Ten Thousand Dollars ($10,000) per day thereafter as adjusted.
The liquidated damages provisions of this Section 9.4 as stated above shall only
apply if this Contract is not terminated by the County, pursuant to Section 9.3. Until such
time as the Contract is terminated by either the County or the Contractor, the liquidated
damages shall continue to pay Fifteen Thousand Dollars ($15,000) per day of continued
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i delay plus the then current actual charges for disposal of solid wastes at the County's
facility.
It is understood that the liquidated damages shall be payable by the Contractor to
the County as they occur and that the payment of such damages shall be the exclusive
remedy of the County for Contractor delay.
Section 9.5 LIABILITY OF CONTRACTOR UPON TERMINATION OF CONTRACT
IN THE CONSTRUCTION PERIOD. If the Contractor fails to complete the design,
construction, shakedown, and testing of the Facility in accordance with the Contract and/or
the Performance Tests are not completed pursuant to Sections 7.2, 7.3 or 7.6 and this
Contract is then terminated by the County pursuant to Section 9.3, the Contractor shall be
liable to the County and shall pay to the County on demand as liquidated damages the
amount of Ten Million Dollars ($10,000,000). If any damages have been assessed pursuant
to Section 9.4 prior to termination of the Contract, such damages shall be credited toward
the damages assessed under this Section 9.5 such that the total damages collected for
delay and termination shall not exceed the maximum specified under this Section 9.5.
Should the County choose to keep the partially completed Facility, then the
Contractor and the County shall agree on the price thereof and the penalties to be paid
as noted above shall be used to reduce the price to be paid by the County.
Should the County choose not to keep the partially completed Facility, then in
addition to the above penalties, the Contractor shall remove the Facility and restore the
Site to its original condition less any grading or completion of underground utilities.
The remedy set forth in this Section 9.5 shall be the County's sole and exclusive
remedy for the Contractor's failure to complete its obligations under this Contract and
the Contractor shall have no other liability to the County under this Contract, either in
law or in equity and the County shall have no obligation to the Contractor for any
Contractors cost including the Capital Cost as defined or required in this Contract.
Section 9.6 TERMINATION FOR CONTINUING FORCE MAJEURE. If an event
of Force Majeure severely impacts the ability of the Facility to be repaired and operated
and the County and the Contractor mutually agree that termination of this Contract is
the best recourse or upon receipt of the decision by the Independent Third Party that an
event of Force Majeure has occurred and cannot be corrected during the term of this
Contract and that termination for Force Majeure should therefore proceed, then the
proceeds from insurance required under Article X shall be paid directly to the County
and used to make payment to the Contractor for direct cost incurred to date by the
Contractor under the terms of this Contract. Costs such as, but not limited to, losses
incurred as a result of the negotiated price being too low, cost overruns unrelated to the
Force Majeure, and indirect costs such as extended overhead are not considered direct
costs and shall not be paid. The County shall have no obligation to pay the Contractor
any additional funds other than the insurance proceeds and the Contractor shall not be
obligated to pay any penalties for non-performance. The Contractor shall maintain
complete documentation to substantiate its cost and to enable expeditious prosecution
of payment. Any disagreements as to the amount of such cost to be paid to the
Contractor shall be submitted to the Independent Third Party for its decision.
Should the County choose to keep the partially completed Facility, then the
Contractor and the County shall agree on the price thereof. Should the County choose
not to keep the partially completed Facility, the Contractor shall remove the Facility and
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1 restore the Site to its original condition less any grading or completion of underground
utilities.
Section 9.7 TERMINATION FOR INABILITY TO MEET PERFORMANCE. In the
event the Contractor, in its sole opinion, is unable to meet the Performance Guarantees
set forth in this Contract, the Contractor may terminate this Contract upon twelve (12)
months written notice to the County. Such termination shall be dealt in the same
manner as if the termination had been by the County for Contractors default and the
Contractor shall be subject to such obligations and duties contained herein this Article
IX.
Section 9.8 Not Used
Section 9.9 OBLIGATION OF CONTRACTOR TO GRANT LICENSE AND SUPPLY
PROPRIETARY INFORMATION TO COUNTY; ASSIGNMENT OF CONTRACTS AND
TRAINING UPON TERMINATION. In addition to all other rights or remedies, in the event this
Contract is terminated pursuant to this Article IX, the Contractor may negotiate with the
County wherein the County at its option could acquire the Facility including the Site or the
lease of the Site, easements and all property of whatsoever kind or nature related thereto,
whether contained thereon, therein or elsewhere (or their leases) as mutually agreed, with
the understanding that the Contractor would vacate the Facility in its existing or original
condition, and the County may complete construction of the Facility with its own personnel or
agents.
In such event, the Contractor shall grant the County full possession, control, use and
occupancy of the Facility and the Site, easements and all property of whatsoever kind or
nature related Thereto, whether contained thereon, therein or elsewhere. The Contractor
shall cooperate so as to avoid interruption of the work and to minimize costs and expenses to
the County in resuming or securing continuity in the design, construction, shakedown,
testing, and/or operation and maintenance of the Facility.
The Contractor shall also assign or grant to The County anon-exclusive and
irrevocable license, with respect to, all patents, processes, trade secrets, know-how and
"shop rights" needed to complete the design, construction, shakedown, testing, operation,
and maintenance of the Facility.
a. If this Contract is terminated because of an Event of Default by the Contractor,
such license shall be transferable and the County shall not be required to make
any royalty payments for such license.
b. In the event this Contract is terminated due to Force Majeure, the license shall
be non-transferable and the County shall purchase such license outright or
make equitable payments for royalties for such license.
To the extent they are assignable and transferable, the Contractor shall assign and
transfer if deemed by the County to be to The benefit of the County or any subsequent
operator of the Facility, all labor contracts, all maintenance contracts, all supply contracts,
and all contracts for sale of Energy and /or Recovered Materials of the Facility, if any.
Upon purchase of the Facility by the County as a result of termination of the Contract,
the Contractor shall supply, at their fair market price, any proprietary components and
products needed for the completion and continuing operation and maintenance of the
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Facility, subject to their continued availability, and provide specifications and shop drawings
for all such proprietary components and products to the County. The Contractor also shall
grant the County the right to use such documents to foster competitive bidding for the
proprietary components and products if the Contractor no longer continues to provide such
components and if alternative components having the same function and use and which are
compatible with the facility are unobtainable at reasonable cost.
The Contractor shall use all reasonable efforts and provide documentation thereof, to
obtain conditions similar to the provisions of this Section with each of its subcontractors and
suppliers.
In the event that proprietary information is delivered to the County under the
terms and conditions of this Section, and in order to protect the proprietary position of
the Contractor, the County agrees to take all reasonable measures to protect and keep
confidential such proprietary information.
In the event this Contract is terminated by the County pursuant to this Article IX
and the County chooses to purchase the Facility, the Contractor agrees to cooperate
with the County or any other party chosen to operate the Facility by providing initial
training and data as may reasonably be agreed upon by the Contractor and the County
to be necessary, subject only to the agreements with respect to proprietary information
contained herein, and Contractor shall be paid its reasonable costs and expenses, if
any.
Section 9.10 BONDS FOR FAITHFUL PERFORMANCE. Contemporaneously
with its execution of this Contract, the Contractor shall deliver to the County a bond (or
bonds) for faithful performance complying in all respects with the requirements of
Chapter 103D, HRS and related Administrative Rules, such bonds being in the
cumulative amount of 100% of the Contract Price of the Pricing Proposal. The purpose
of such bonds is to secure the performance by the Contractor or its construction
contractors of its obligations under this contract. Such bonds shall remain in effect until
the Commercial Operations Date.
Section 9.11 LIABILITY OF COUNTY FOR ITS EVENTS OF DEFAULT. If the
County commits an Event of Default and fails to cure such default in accordance with
this Contract and this Contract is then terminated by the Contractor pursuant to Section
9.3, the liabilities of the County to the Contractor are limited to the costs incurred to date
by the Contractor under the terms of This Contract. Costs such as, but not limited to,
losses incurred as a result of the negotiated price being too low, cost overruns unrelated
to County's default, and indirect costs such as extended overhead are not considered
direct costs and shall not be paid. The Contractor shall maintain complete
documentation to substantiate its costs and to enable expeditious prosecution of
payment. Any disagreements as to the amount of such cost to be paid to the Contractor
shall be submitted to the Independent Third Party for resolution. Payment of such
liabilities shall be made as provided by law.
Section 9.12 GENERAL INDEMNITY:
a. The Contractor shall defend, indemnify, and hold the County Indemnified
Parties harmless from and against any claims arising out of, resulting from,
or related to, and any losses proximately caused by, the negligent or willful
acts or omissions of the Contractor Indemnified Parties with respect to the
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performance of the Contractor's obligations under this Contract.
b. The County shall defend, indemnify, and hold the Contractor Indemnified
Parties harmless from and against any claims arising out of, resulting from,
or related to and, any losses proximately caused by, the negligent or willful
acts or omissions of the County Indemnified Parties with respect to the
performance of the County's obligations under this Contract.
c. The Contractor shall defend, indemnify, and hold the County Indemnified
Parties harmless from and against any claims arising out of, resulting
from, or related to, and any losses proximately caused by, the breach of
any representations made by the Contractor in this Contract.
d. The County shall defend, indemnify, and hold the Contractor Indemnified
Parties harmless from and against any claims arising out of, resulting from,
or related to, and any losses proximately caused by, the breach of any
representations made by the County in this Contract.
e. The Contractor shall defend, indemnify, and hold the County Indemnified
Parties harmless from and against any claims for infringement or
misappropriation of intellectual property in connection with the design,
construction, or operation and maintenance of the Facility by the
Contractor Indemnified Parties.
f. The Contractor shall not be obligated to defend, indemnify, or hold the
County Indemnified Parties harmless from and against any claims arising
out of, resulting from, or related to, or any losses caused by the County
Indemnified Parties' own negligent or willful acts or omissions, and the
Contractor shall not be obligated to indemnify the County Indemnified
Parties for incidental, consequential, special, remote, indirect or punitive
damages.
g. The County shall not be obligated to defend, indemnify, or hold the
Contractor Indemnified Parties harmless from and against any claims
arising out of, resulting from or related to, or any losses caused by, the
Contractor Indemnified Parties' own negligent or willful acts or omissions,
and the County shall not be obligated to indemnify the Contractor
Indemnified Parties for incidental, consequential, special, remote, indirect,
or punitive damages.
h. In case of joint or concurrent negligence on the part of the County
Indemnified Parties and the Contractor Indemnified Parties giving rise to
claims against either or both, nothing shall affect either the County
Indemnified Parties' rights or the Contractor Indemnified Parties' rights, if
any, to contribution from the other.
Subject to the provisions of this section, the County shall defend,
indemnify, and hold the Contractor Indemnified Parties harmless from and
against any claims or losses that arise out of, or result from and are related
to:
(1) any environmental condition or any release or threatened release of
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regulated substances on, at or from the East Hawaii Regional Sort
' Station Facility;
(2) any environmental condition or any release or threatened release of
regulated substances on, at or from the Site as of the date of this
Contract; and
(3) any violations of Environmental Laws related to the County's
operation or maintenance of the East Hawaii Regional Sort Station
Facility,
except to the extent that such environmental condition, release or
violations of Environmental Laws are caused by the negligent or willful acts
or omissions of the Contractor Indemnified Parties.
j. Subject to the provisions of this section, the Contractor shall defend,
indemnify, and hold the County Indemnified Parties harmless from and
against any claims or losses that arise out of or result from and are related
to any environmental condition or any release or threatened release of
regulated substances on, at or from the Site and/or the Facility occurring
after the date of this Contract and before termination of this Contract,
except to the extent:
(1) The environmental condition, release or threatened release arises
out of, results from, or is related to an environmental condition,
release or threatened release which preexisted or occurred prior to
the date of this Contract;
(2) The environmental condition, release or threatened release arises
out of, results from, or is related to an environmental condition,
release or threatened release on, at or from the East Hawaii
Regional Sort Facility; or
(3) The environmental condition, release or threatened release arises
out of, results from, or is related to the negligent or willful acts or
omissions of the County Indemnified Parties.
k. The following procedures shall govern any claims for indemnification under
this section.
(1) Notice. The party claiming a right to indemnification shall promptly
give the indemnifying party notice of the incurring of any losses or
any circumstances that will likely result in a claim by it for indemnity
pursuant to this Contract. The notice shall describe with reasonable
detail the nature of such losses or circumstances to the extent
known, and shall include copies of any written documentation
relating to the losses or circumstances.
(2) Defense. The indemnifying party shall promptly assume the defense
of any such matter. Upon assumption of such defense by the
indemnifying party, the indemnified party may participate in the
defense at the indemnified party's sole expense.
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(3) Coordination and Control. Upon assuming the defense of any matter
covered by an indemnity, the indemnifying party shall keep the
indemnified party reasonably informed of the status of such matter
and shall have the right to compromise and settle any such matter
except to the extent that the compromise and settlement obligates
the indemnified party to make any payment, part with any property,
assume any obligation, perform any act, or forego any act, right,
privilege or opportunity, providing that the indemnifying party shall
make no admission of liability or fault on the part of the indemnified
party without the indemnified party's written permission. Upon the
assumption of the defense of any mailer covered by an indemnity,
the indemnified party shall not compromise and settle the matter
without the indemnifying party's written permission which permission
shall not be unreasonably withheld.
I. The Contractor shall use commercially reasonable efforts to obtain for the
joint benefit of County and Contractor, indemnifications and warranties
from vendors, manufacturers, and suppliers of machines, articles of
manufacture, equipment, and materials furnished for construction,
operation, or maintenance of the Facility (including with respect to claims
for infringement or misappropriation of intellectual property), to the extent
that such indemnifications or warranties are reasonably obtainable.
I. The County Indemnified Parties shall not incur personal liability to the
Contractor for reasonable actions taken in good faith in connection with
this Contract. The Contractor Indemnified Parties shall not incur personal
liability to the County for reasonable actions taken in good faith in
connection with this Contract.
ARTICLE X
PAYMENTS AND ADJUSTMENTS TO THE CONTRACT
Section 10.1 PAYMENTS. The Contractor shall receive no payment during the
Construction Period. Changes requested by the County that require a change to the
Contract Price shall be paid for by an adjustment to the Service Fee. For any change to
the Contract Price the adjustment will be made in accordance with this Contract and the
basis of payment outlined in the County's Standard Specifications shall not apply to this
Contract. If an error, omission or misstatement shall be discovered in the quantities or
measurements stated in the Contract, the same shall not invalidate the Contract, or
release-the Contractor or its surety or sureties from performing the Contract, or affect
the price agreed to under the Contract, or excuse the Contractor from any of the
obligations or liabilities under the Contract.
Section 10.2 ADJUSTMENTS TO THE CONTRACT. Adjustments to the
Contract shall be as follows:
a. For changes to the Facility approved by the County, the Contract Price
shall be adjusted for any documented increases or decreases in costs and
the Construction Period adjusted for any documented delays. County
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1 changes which require adjustments to the Contractors guarantees,
warranties, or other obligations set forth in this contract shall be permitted
be by the County. The Gontractor shall provide documentation of the
impacts of such events on its obligations with its request for adjustment,
and such adjustment shall be made at the sole discretion of the County.
b. For events of Force Majeure or changes to the Facility as a result of Force
Majeure, the Contract Price shall not be adjusted. The Construction Period
shall be adjusted for any documented delays due to events of Force
Majeure or changes to the Facility as a result of Force Majeure.
Adjustments to the Contractors guarantees, warranties, or other
obligations set forth in this contract may be permitted by the County due to
events of Force Majeure. The Contractor shall provide documentation of
the impacts of such events on its obligations with its request for
adjustment, and such adjustment shall be made at the sole discretion of
the County.
The County shall have the right to review the Contractors documentation of fts
costs, and delays, and any other claims as provided for in this Article X. If the parties
are unable to agree, then the question of the proper amounts of such adjustments to the
Contract will be referred to the Independent Third Party for binding resolution.
Section 10.3 WAGES AND HOURS. To the extent applicable, the Contractor shall
observe and comply with all the provisions of Hawaii Revised Statutes Chapter 104 relating
to wages and hours of employees on public works. If such chapter is applicable:
a. Wages and Hours. The Contractor shall pay all of the Contractors employees,
and ensure that all employees of the Contractor's subcontractors are paid, the
prevailing wage rates in conformance with applicable federal and state laws.
b. Minimum Wages. The minimum wage shall be periodically increased during
the performance of this Contract in an amount equal to the increase in the
prevailing wages for those kinds of work as periodically determined by the
State Director of Labor and Industrial Relations. Notwithstanding the
provisions of this Contract, if the State Director of Labor and Industrial
Relations determines that the prevailing wage has increased, the rate of pay
of laborers and mechanics under this Contract shall be raised accordingly. No
increase in the minimum wage shall be considered a change in law, and no
compensation shall be owed to Contractor and no adjustment shall be made
to any other term or condition of this Contract for any increases of the
minimum wage during the term of this Contract.
c. Overtime Work. No laborer or mechanic employed on the job site shall be
permitted or required to work on anon-business day or in excess of eight
hours on any other day unless the laborer or mechanic received overtime
compensation for all hours worked on anon-business day or in excess of
eight (13) hours on any other day. For purposes of determining overtime
compensation under this subsection, the basic hourly rate of any laborer or
mechanic shall not be less than the basic hourly rate determined by the State
Director of Labor and Industrial Relations to be the prevailing basic hourly rate
for corresponding classes of laborers and mechanics on projects of similar
character in the State.
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d. Certified Pavroll. A certified copy of all payrolls shall be submitted bi-weekly to
the County. The Contractor shall be responsible for the submission of certified
copies of the payrolls of all subcontractors. The certification shall affirm that
the payrolls are correct and complete, that the wage rates contained therein
are not less than the applicable rates contained in the wage determination
decision of the State Director of Labor and Industrial Relations, and that the
classifications set forth for each laborer or mechanic conform with the work
the laborer or mechanic performed.
e. Maintain Pavroll Records. Payroll records for all laborers and mechanics
working at the Site of the work shall be maintained by the Contractor and its
subcontractors, during the course of The work and preserved for a period of
three (3) years thereafter. The records shall contain the name of each
employee, the employee's correct classification, rate of pay, daily and weekly
numbers of hours worked, deductions made and actual wages paid. The
County shall have the right to audit the wage and hour records of the
Contractor and its subcontractors.
f. Violations. If County finds that any laborer or mechanic employed on the
job site by the Contractor or any of its subcontractors has been or is being
paid wages at a rate less than the required rate, or has not received the
laborers or mechanic's full overtime compensation, the County may take
appropriate action in accordance with Hawaii Revised Statutes Section
104-5, or the County may by written notice to the Contractor, terminate the
Contractor's right, or the right of any of its subcontractors, to proceed with
the work or with the part of the work in which the required wages or
overtime compensation have not been paid and may complete such work
or part of the work by contract or otherwise, and the Contractor and its
sureties shall be liable to the County for any costs occasioned thereby.
g. Post Waoe Schedule. The Contractor is required to post the applicable
wage schedule in a prominent and easily accessible place at the job site.
The Contractor shall give to each
laborer and mechanic employed under this Contract a copy of the rates of
wages required to be posted.
h. Inclusion in Subcontract. The Contractor shall include this section in every
subcontract for work under this Contract.
Audit. The County shall have the right to have an annual audit performed
at the County's expense by an independent certified public accountant of
all books, records, and accounts of the Contractor and its affiliates and
subcontractors relating directly or indirectly to the Contract Documents.
Such books and records shall be made available at the Facility during the
Contractor's normal Facility staffing hours for examinations by the County's
representatives. The County shall give the Contractor five (5) business
days prior written notice of any such audit.
1 Records. Except as otherwise provided in this Contract, at the end of the
term, the Contractor shall provide the County with copies of all records
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required to be kept pursuant to this section; and shall comply with any
continuing record retention requirements in any applicable law or
governmental approval.
ARTICLE XI
CONFIDENTIAL INFORMATION
Section 11.1 CONFIDENTIAL AND PROPRIETARY INFORMATION. The
County acknowledges that the Contractor has valuable confidential commercial and
financial information, trade secrets or proprietary data relating to the processing and
marketing of beneficial reuse materials ('Confidential Information"); and that disclosure
of such Confidential Information to the County or the County's officers, employees and
agents is solely for the purposes of facilitating the transactions and work contemplated
by this Contract, and is made solely under the terms and conditions of this Article XI.
Section 11.2 IDENTIFICATION OF CONFIDENTIAL INFORMATION. The
Contractor shall inform the County in writing of any Confidential Information contained in
any documents submitted to the County by the Contractor under this Contract or
otherwise communicated to the County by the Contractor. The Contractor shall mark
any portions of such documents which contain Confidential Information with an
appropriate legend such as "CONFIDENTIAL," "PROPRIETARY," or the like.
Section 11.3 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Except
for such disclosures as permitted under Section 11.4 or as required by law (after notice
as provided in Section 11.5), no Confidential Information provided by the Contractor
shall be disclosed by the County or the County's officers, employees or agents to any
other person without the express written consent of the Contractor, and no such
Confidential Information shall be used by the County or its representatives for any
purpose other than such purposes as authorized under this Contract. The County and
the County's officers, employees and agents shall take all precautions necessary to
preserve the confidentiality of such Confidential Information and to protect it from
disclosure to third parties, except as is required by law. The County agrees that it will be
responsible for any breach of this covenant by the County's officers, employees and
agents.
Section 11.4 PERMITTED DISCLOSURE. Confidential Information received by
the County may be disclosed to the County's officers, employees and agents only if and
to the extent that access to such Confidential Information is necessary in the
performance by such person of their responsibilities with respect to financing,
implementing, administering or enforcing this Contract.
Section 11.5 UNIFORM INFORMATION PRACTICES ACT REQUESTS; LEGAL
DEMANDS. In the event that the County or its representatives receive a request from
any person under the Uniform Information Practices Act, Chapter 92F, Hawaii Revised
Statutes, or a legal demand from or authorized by any Governmental Authority
(including a demand by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process) to disclose any of
the Confidential Information, the County shall provide the Contractor with prompt written
notice so that the Contractor may take such legal action as it deems appropriate to
dispute such request or demand and to protect the Confidential Information from
disclosure to a third party. Pending any such action to protect the Confidential
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Information, the County shall take all reasonable steps to avoid prejudice to the
Contractor's rights and effort to protect such Confidential Information. In the event a
protective order or other remedy is not obtained, or that the Contractor waives
compliance with the provisions of Section 11.5, the County shall furnish only that portion
of the Confidential Information which the County is legally required to disclose.
Section 11.6 LIMITATION ON USE. Except as otherwise provided in this
Contract, the County shall not use, or allow any of the County's officers, employees and
agents to use, any Confidential Information for any purpose other than to monitor the
Contractors performance of the Contractors obligations under this Contract, or to
finance, implement, administer and enforce this Contract.
ARTICLE XII
CONTRACT ADMINISTRATION
Section 12.1 CONTRACT REPRESENTATIVES. The County's representative in
the administration of this Contract shall be the Director of Environmental Management,
or designated representative (hereinafter 'Contract Representative"). The Contractors
Representative in the administration of this Contract shall be:
Either party may change its representative in the administration of this Contract upon
five (5-days written notice to the other party to this Contract.
Section 12.2 SITE REPRESENTATIVES. The Contractor shall designate a Site
representative, headquartered in the East Hawaii County who will be available and
have authority to make normal operating decisions for the Contractor. The County shall
designate a representative with authority to act on behalf of the County.
Section 12.3 RIGHT OF COUNTY TO EXAMINE CERTAIN BOOKS AND
RECORDS OF THE CONTRACTOR RELATING TO THE FACILITY. In addition to the
wage and payroll records to be kept and certified under Article X of this Contract, the
Contractor will supply the County with:
a. such documents as may be necessary to verify payment for work
pertormed on a force account basis; and
b. a monthly certificate with respect to the percentage of work completed.
Included with such monthly certificate shall be supporting documentation
specifying the percentage of work completed and including a narrative
description of major work categories such as labor, equipment, materials,
and services in sufficient detail to accurately reflect such percentages of
project completion.
Section 12.4 OFFICE FOR COUNTY'S CONTRACT REPRESENTATIVE. At all
times during the term of this Contract, the Contractor shall provide and keep available at
the Site an office space for the County's Contract Representative and staff. The size of
the County's Contract Representative's office shall be at least the size of the office
provided by the Contractor to its most senior representative at the Site or as specified in
Subsection 6.4 of the Revised General Conditions of Construction Contracts of the
County of Hawaii, whichever is greater. The minimum office space required for staff
shall consist of: (1) One hundred (100) square feet for secretarial space; (2) One
hundred (100) square feet of equipment and storage; and (3) Two hundred (200) square
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feet of conference room. The Contractor, at its expense, shall provide such office with
furnishings similar to those provided by the Contractor to its most senior representative
and staff at the Site including all the furnishings and supplies required in the General
Conditions.
Section 12.5 COMPUTER INTERFACE. The Contractor shall allow the County
access, to real time data, on a read only basis, to all operational computer data
including but not limited to process controls and monitoring, permit reporting, material
receiving and product delivery. It is understood that access to the Contractors financial
records shall not be permitted. The Contractor will provide the County the software to
allow the ability to sign on to their system remotely to read the permitted data. The
County shall provide the computer hardware required and the Contractor shall provide
all hard wire and software.
ARTICLE XIII
INSURANCE
Section 13.1 GENERAL PROVISIONS AS TO INSURANCE. At all times during
the term of this Contract, the Contractor shall, at its expense, procure, and maintain,
such insurance as described in Sections 13.2 through 13.5, to the extent commercially
available, through recognized, responsible insurers authorized to do business in the
State of Hawaii and selected at its sole discretion. The Contractor shall also bear the
risk of collecting such insurance. The County shall be named as additional insured on
all policies other than Workers Compensation Insurance,
A copy of all certificates of insurance or commitment letters shall be furnished to
the County within ten (10) calendar days after Notice of Award of This Contract. Policies
or certificates of the applicable insurance shall be furnished to the County before the
award of the Contract and each such policy or certificate shall contain an endorsement
to the effect that the insuring company will notify the County through the Finance
Director thirty (30) days prior to the effective date of any cancellation or change in the
provisions of such policy.
Whenever a subcontractor is utilized, the Contractor shall either procure and
maintain, or require the subcontractor to procure and maintain during the Construction
Period, such insurance as described in Sections 13.3 through 13.5, subject to the same
coverage extensions and limits specified herein, which insurance shall cover damage
caused by actions of the subcontractor or its employees and agents.
The provisions of this Contract as to insurance required to be procured and
maintained by the Contractor are minimum requirements and shall not be construed as
limiting and prohibiting the Contractor from obtaining any additional insurance it may
wish to carry at its own expense.
Section 13.2 BUILDER'S ALL RISK INSURANCE. The Contractor shall procure
and maintain Builders All Risk Insurance with extended coverage (including transit and
incidental storage) for delay costs and the full replacement value of:
a. the insurable buildings or structures, additions, temporary structures,
renovations, alterations, or modifications of or to the Facility; and
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b. the full insurable value of the work to be done other than buildings or
structures of the Facility on and off the Site, such as, but not necessarily
limited to, improvements including the installation of sewer lines, traffic
lights, street lights, road and water works in connection with the
construction of the Facility.
This insurance shall be in force through the Construction Completion Date, and
shall cover all work, labor, materials, supplies, fixtures, equipment, and machinery on
and off the Site against loss from the perils normally covered by such policy including
the perils of fire, lightning, earthquake, collapse, windstorm, wind blown water, hail,
explosions, volcano, tidal wave, flood, riot, riot attending strike, civil commotion, aircraft,
vehicles, smoke, vandalism, and malicious mischief.
Builders All Risk Insurance as set forth above shall apply to all work; however,
fire coverage may be excluded for the portion of work other than buildings and
structures.
Section 13.3 COMPREHENSIVE GENERAL LIABILITY INSURANCE. The
Contractor shall procure and maintain personal injury and property damage insurance
covering, but not limited to products and/or completed operations, independent
contractors, personal injury, broad form property damage and contractual liability
insurance as shall be reasonably available adequate to insure the County and the
Contractor against risks and liability to which they may reasonably be, or become,
subject as a result of operation, construction or reconstruction of the Facility. Such
insurance shall be maintained with limits of not less than Two Million Dollars
($2,000,000) combined single limit. Such insurance shall include the County as
additional insured. Each such liability insurance policy shall be endorsed to indicate it is
primary insurance with respect to the interest of the additional insured and any
insurance maintained by such additional insured is excess and not contributory with this
insurance. This coverage may be arranged with a lower limit primary policy with excess
or umbrella poiicy(ies) to provide the required Two Million Dollars ($2,000,000)
minimum limit.
Section 13.4 MOTOR VEHICLE LIABILITY INSURANCE. The Contractor shall
procure and maintain comprehensive motor vehicle liability insurance including non-
owned and hired auto coverage for limits of at least One Million Dollars ($1,000,000)
combined single limit for personal injury and property damage.
Section 13.5 WORKERS' COMPENSATION INSURANCE. The Contractor shall
maintain the required workers' compensation insurance for all of the employees who will
be engaged in work at the Site of the project as set forth in Chapter 386, Workers'
Compensation Law, H.R.S., as amended, and The Federal Longshoremen and Harbor
Workers' Compensation Act and the Federal Maritime Employers Liability Law (Jones
Act). In case any part of the Contractors contract is sublet, the Contractor shall require
his subcontractor to maintain such insurance for all the subcontractors employees who
will be so engaged, unless the tatter's employees are protected by the principal
Contractors insurance. At its sole risk, the Contractor may be self insured as provided
under Hawaii Law.
Section 13.6 PAYMENT OF PREMIUMS AND DEDUCTIBLES. The Contractor
shall include in the Pricing Proposal, premiums on all insurance pursuant to this Article
XIII. The Contractor shall be responsible for establishing the amounts of deductibles, if
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any, on all insurance and shall bear the cost of any such deductibles as required.
Section 13.7 RISK RETENTION. Any and all policies obtained pursuant to this
Contract may contain exclusions of nuclear risk and war risk as are imposed by
insurers. The County shall not be responsible for losses due to risks retained through
deductibles in the policies required in this Article, fault notwithstanding. Such losses
shall be the sole responsibility of the Contractor.
Section 13.8 DISPOSITION PROCEEDS OF INSURANCE: DAMAGES IN
EXCESS OF INSURANCE. The proceeds of any insurance received pursuant to
policies required by Section 13.2 shall be paid to the Contractor and shall be applied to
repair or replace the damages for which such proceeds are awarded, provided,
however, that if the County and the Contractor agree not to repair or replace such
damages then the proceeds shall be used to offset payment of the Contract Price, or
the Service Fee in the Operating Contract, in a manner agreed to by the parties. The
proceeds of any insurance received pursuant to policies required by Sections 133, 13.4
and 13.5 shall be applied to satisfy claims for which such proceeds are awarded.
The insurance coverages as provided in this Article represent the kinds and
amounts of insurance coverage considered by the County in its best judgement to be
proper and prudent for this Contract. As provided for in Section 13.1, the Contractor, at
its expense, may obtain any other insurance coverages or increased coverage as the
Contractor may require for its benefit in addition to those specified in this Article XIII.
Should any insurance be commercially available but not available to the
Contractor due to the negligence and/or fault of the Contractor, then the Contractor shall
bear the cost of any damages which would have been paid from insurance proceeds
had the Contractor maintained such insurance.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR.
The Contractor represents and warrants as follows that:
a. It is a corporation duly organized and existing under and by virtue of the
laws of
b. It has full power and authority to do business in the State of Hawaii.
c. At all times during the Contract term, it will maintain its status under the
laws of such State or States subject to the right of the Contractor to merge
or consolidate with one or more other entities as contemplated by Section
14.7 and will maintain its authority to do business in .the State of Hawaii.
d. It has full power and authority to execute and deliver this Contract and to
perform this Contract in accordance with its terms.
1 e. Its officers who are here undersigned have been empowered by all
necessary authorizations and resolutions to execute this Contract on its
behalf.
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f. It has duly authorized, executed, and delivered this Contract and the
Contract therefore constitutes a legal, valid, and binding obligation
enforceable against it in accordance with the terms (subject to applicable
bankruptcy limitations).
g. Its execution and delivery of this Contract and its performance of its
obligation to fulfill the terms or conditions hereof:
(1) do not conflict with, violate or result in a breach or default of any
constitution, law, or governmental regulation applicable, and
(2) do not conflict with, violate, or result in a breach or default of any
term or condition of any order, judgement or decree, or any
agreement or instrument to which it is a party or by which it or any of
its properties or assets are bound.
h. No approval, authorization, order or consent of, or declaration, registration
or filing with any governmental authority is required for the valid execution
and delivery of this Contract by it, except such as have been duly obtained
or made.
There is no action, suitor proceeding, at law or in equity, before or by any
court or governmental authority pending or, to the best of its knowledge,
threatened against it, which might materially adversely affect the
performance of its obligations hereunder or under the transactions
contemplated hereby, or which, in any way, questions the validity, legality
or enforceability of this contract, or any other agreement or instrument
entered into by the Contractor in connection with this Contract.
Contractor has obtained or will obtain all government approvals required
for the Contractor to perform its obligations under this Contract.
Section 14.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY. The
County represents and warrants to the Contractor as follows that:
a. It is a municipal entity duly organized and validly existing under The
constitution and laws of the State of Hawaii, with full legal right, power, and
authority to enter into and perform its obligations under this Contract.
b. It has been duly authorized to execute and deliver this Contract which thus
constitutes a legal valid and binding obligation enforceable against it in
accordance with its terms (subject to applicable bankruptcy limitations).
c. Its execution and delivery of this Contract and its performance of its
obligations to fulfill the terms and conditions hereof:
(1) do not conflict with, violate or result in a breach of any constitution,
law, or governmental regulation applicable to it and
(2) do not conflict with, violate or result in a breach of any term or
condition of any order, judgement or decree, or any agreement or
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instrument to which it is a party or by which it or any of its properties
or assets are bound.
d. No approval, authorization, order or consent of, or declaration, registration
or filing with, any governmental authority and no referendum or vote is
required for the valid execution and delivery of this Contract or its
performance of its obligations hereunder by it except such as have been
disclosed to the Contractor and have been duly obtained or made.
e. There is no action, suit, or proceeding, at law or in equity, before or by any
court or governmental authority, or proceeding for referendum or other
voters' initiative, pending or, to the best of its knowledge, threatened
against it, which might materially adversely affect the performance of its
obligations hereunder or under the other transactions contemplated
hereby, or which, in any way, questions the validity, legality, or
enforceability of this contract, or any other agreement or instrument
entered into by it in connection with the transaction contemplated hereby
or would materially adversely affect the ability of the Contractor to perform
its obligations hereunder.
f. County has obtained or will obtain all governmental approval required for
County to perform County's obligations under this Contract.
g. No condition exists that constitutes, or with the giving of notice or lapse of
time or both would constitute an event of default by County under any
indenture, mortgage, deed of trust, lease, conditional sales contract, load
or credit arrangement or other material agreement or instrument to which
County is a party or by which County or any of its properties may be
bound, which individually or in the aggregate with all such events of default
could reasonably be expected to have a material adverse effect. County is
not in default with respect to any governmental approval which would have
a material adverse effect on the execution, delivery or enforceability of this
Contract or County's performance of its obligations hereunder.
h The Site has been and is being operated and used in compliance with All
Laws, including all applicable environmental laws and no environmental
condition exists at, on or under the Site which would give rise to liability
under any environmental law.
i. The information set forth in this Contract has been disclosed in writing by
or on behalf of the County to the Contractor in the Contract Documents
and the transactions contemplated thereby, and such information when
taken as a whole does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
it being understood with respect to any projections contained in such
information, that such projections are based on good faith estimates and
assumptions by the County, and that projections as to future events are
not to be viewed as fact, and that actual results during the period covered
by such projections may differ from projected results; provided that the
management of the County has no reason to believe that such projections
are materially false or incorrect.
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' j. The County is in compliance with ERISA, state public employee pension
and retirement laws, and the code, except for such failures to comply that,
in the aggregate for all such failures, could not reasonably be expected to
have a material adverse effect on the execution, delivery or enforceability
of this contract or the County's performance of its obligations hereunder.
k. As of the date of the Site lease, all property, documentary, sales, excise or
use taxes relating to the Site and the Site lease which are then due and
payable, will have been paid in full, or adequate provision for payment will
have been made, by the County.
I. (1) the Site has been, and continues to be, in material compliance with
all Environmental Laws;
(2) there have been no past, and there are no pending or threatened,
claims, complaints, notices or requests for information received by
the County with respect to any alleged violation of any
environmental law at the Site, or with respect to any potential
liabilities with respect to environmental conditions at, on or affecting
the Site;
(3) there have been no releases at, on or under the Site that, singly or in
the aggregate, have or may be reasonably expected to have a
material adverse effect;
(4) there are not, and have not been, any active or abandoned
underground storage tanks on or under the Site;
(5) there are no polychlorinated biphenyls or friable asbestos present at
the Site that singly, or in the aggregate, have or may reasonably be
expected to have a material adverse effect; and
(6) no environmental condition exists at, on or under the Site which
would give rise to liability under any environmental law.
Section 14.3 FURTHER ASSURANCES. Each party agrees to execute and
deliver any instruments and to perform any acts that may be necessary or reasonably
requested in order to give full effect to this Contract.
Section 14.4 RELATIONSHIP OF THE PARTIES. Except as expressly provided
in this Contract, no party to This Contract shall be responsible for the services provided
or obligations assumed by any other pally and nothing in this Contract shall be deemed
to make any party a partner, agent, or legal representative of any other party or to
create any fiduciary relationship between the parties.
Section 14.5 DELETED.
Section 14.6 ASSIGNMENT OF CONTRACT. The Contractor shall not attempt to
assign or assign this Contract without the prior written consent of the County which
consent shall not be unreasonably withheld and unless and until its assignee shall have
agreed in writing to become liable for all of the Contractor's obligations under this
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' Contract. If the Contractor or any of its parent companies shall consolidate with or
merge into another entity, this Contract shall be assigned to such resulting or surviving
entity in such consolidation or merger by operation of law. Further, if the Contractor or
any of its parent companies shall transfer all or substantially all of its assets (including
this Contract) to another entity, this Contract may be assigned to such transferee entity.
Such resulting or surviving or transferee entity shall become liable or assume liability for
all of the Contractors obligations under this Contract.
Section 14.7 BINDING EFFECT. This Contract shall be binding on the County,
the Contractor and their respective successors and assigns.
Section 14.8 GOVERNING LAW AND JURISDICTION: NO SOVEREIGN
IMMUNITY. This Contract shall be governed by and construed in accordance with the
laws of the State of Hawaii. The Contractor hereby agrees to submit to service of
process in and to the jurisdiction of the courts of the State of Hawaii in connection with
any claim or controversy arising out of the interpretation, application, or enforcement of
this Contract. The County to the extent permitted by law hereby irrevocably waives and
renounces any and all rights to sovereign immunity (or similar rights and defenses) it
may have with respect to, and agrees not to raise sovereign immunity (or similar
defense) as a defense to, any claim, suit or proceeding based on or arising out of this
Contract, the transactions contemplated hereby, or a breach hereof, brought against the
County by or on behalf of the Contractor.
Section 14.9 WAIVER. Unless otherwise specifically provided by the terms of this
Contract, no delay or failure by either party to exercise any of its rights under this
Contract or resulting from any breach of this Contract or failure to perform will impair or
be construed to be a waiver of such rights. Any waiver must be in writing and signed by
the party granting such waiver. If any covenant or agreement contained in this Contract
is breached by any party and thereafter waived by any other party, such waiver will be
limited to the particular breach so waived and will not be deemed to waive any other
breach under this Contract.
Section 14.10 APPROVALS. CONSENTS. AND AGREEMENTS. Whenever the
approval, consent, or agreement of either The County or the Contractor is required or
contemplated, such approval, consent or agreement shall not be unreasonably withheld.
Section 14.11 ENTIRE AGREEMENT: AMENDMENTS. This Contract, including
all Exhibits and Addenda attached hereto, constitute the entire understanding and
agreement between the-County-and the Contractor as to the subject matter hereof
There are no terms, obligations, covenants, or conditions other than those contained
herein. No modification or amendment of this Contract shall be valid and effective
unless evidenced by an agreement in writing.
Section 14.12 SEVERABILITY. In the event any covenant, condition, or provision
of this Contract is held to be invalid or unenforceable by a final judgment of a court of
competent jurisdiction, the invalidity or unenforceability thereof shall in no way affect
any of the other covenants, conditions, or provisions hereof provided that such
remaining covenants, conditions, and provisions can thereafter be applicable and
effective without material prejudice to either the County or the Contractor. This Contract
1 is a separate agreement from any other agreements between the parties and all duties
and obligations vested in either party hereunder shall not be dependent on performance
under any other agreement.
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1 Section 14.13 EFFECT OF ARTICLE AND SECTION HEADINGS AND TABLE
OF CONTENTS. The headings or titles of the several articles and sections hereof and
any table of contents shall be solely for convenience of reference and shall not affect
the meaning of the construction, interpretation or effect of this Contract.
Section 14.14 CONTRACT MAY BE EXECUTED IN COUNTERPARTS. This
Contract may be simultaneously executed in counterparts. Each such counterpart so
executed shall be deemed to be an original, and all such counterparts together shall
constitute one and the same instrument.
Section 14.15 INDEPENDENT THIRD PARTY. To the extent permitted by law,
and unless otherwise specified in this Contract, any controversy arising under this
Contract which the parties are unable to resolve by mutual agreement, shall be
submitted to the Independent Third Party in accordance with the rules of resolution
provided in attached Exhibit .Any decision of the Independent Third Party with
respect to any matter that over the term of this Contract will involve Two Hundred and
Fifty Thousand Dollars ($250,000) or less shall be binding and conclusive as to the
matters submitted and may be enforced in any court of competent jurisdiction in the
State of Hawaii. Any decision of the Independent Third Party with respect to any matter
that over the term of this Contract will involve more than Two Hundred and Fifty
Thousand Dollars ($250,000) may be submitted to any competent jurisdiction in the
State of Hawaii and the matter settled by a jury decision.
The Independent Third Party shall be selected and resolve issues in accordance
with the procedures provided in Exhibit G. The Independent Third Party may be relieved
of his employment by either the County or the Contractor, provided, however, during a
pending decision, the Independent Third Party shall not be relieved of his employment
except by mutual agreement of the County and the- Contractor. If such an event occurs
the County and the Contractor shall immediately select a new Independent Third Party
utilizing Exhibit.
The services of the Independent Third Party will be on a retainer basis in an
amount not to exceed Twenty-Five Thousand ($25,000) per year for the first two (2)
years of retainage and Ten Thousand Dollars ($10,000) per year thereafter with the fee
to be paid equally by the County and the Contractor. Additional costs incurred in excess
of the retainer fee resulting from items submitted for decision shall be paid by the party
damaged by the final decision. Where the decision is not clearly in the favor of either
party then the percentage of such additional costs shall be paid by the County and the
Contractor as decided by the Independent Third Party.
Section 14.16 AGREEMENT AS TO TAX EXEMPTIONS. GRANTS AND OTHER
BENEFITS DURING THE CONSTRUCTION PERIOD. In the event the Facility or any
part thereof may become eligible for any exemptions from any taxes or to receive any
grants, public or private, or other benefits, after receipt of the Pricing Proposal, the
parties shall take whatever reasonable steps are required to take advantage of any
such exemptions or to receive any such grants or benefits. Where such tax exemptions,
grants, and benefits are provided to the Facility at no cost to the Contractor all monies
derived therefrom shall be paid to the County. Where such benefits require the
expenditure of funds, the County and the Contractor shall mutually agree as to the
extent of equity participation by the Contractor and monies derived therefrom shall be
paid to the County and the Contractor in direct proportion to their expenditure of funds.
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t~ Section 14.17 NON-DISCRIMINATION IN EMPLOYMENT. The Contractor shall
comply with all laws and regulations which prohibit discrimination against any applicant
for employment or employees and will take affirmative action to ensure compliance.
Such action shall be applicable to, but not be limited to, recruitment and recruitment
advertising; hiring; promotion; upgrading; transfer; selection for training, including
apprenticeship; demotion; layoff; and termination. The Contractor will post in
conspicuous places, available to employees and applicants for employment, notices
setting forth the provisions of this nondiscrimination clause.
Section 14.18 ADVERTISEMENTS. The Contractor in all solicitations or
advertisements for employees, placed by or on behalf of the Contractor, shall state that
all qualified applicants will receive consideration for employment in accordance with all
laws and regulations which prohibit discrimination and without regard to factors such as,
but not limited to age, race, color, religion, sex, sexual preference, national origin, or
disabilities.
Section 14.19 CONDITIONS PRECEDENT. The obligations of both the County
and the Contractor under this Contract are conditional upon the following conditions
having been satisfied prior to the Construction Commencement Date:
a. Retention of the Independent Third Party.
b. Execution of a Confidentiality Agreement for the benefit of the Contractor
with the Independent Third Party.
c. The Contractor has acquired all permits and the EIS necessary to
construct the Facility at the Site.
d. The County and the Contractor each furnishing to the other an opinion of
their respective counsel to the effect that (1) this Contract has been duly
authorized and executed by their respective party and is enforceable in
accordance with its terms (subject to bankruptcy limitations) and that it
does not violate any contractual or other legal obligations of such party; (2)
to the knowledge of counsel, there is no action lawsuit or proceeding
(including bankruptcy, insolvency, or similar proceeding) before any court
or governmental authority, pending or, to counsel's knowledge, threatened,
in which an unfavorable decision could reasonable be expected to have a
material adverse effect on the execution, delivery or enforceability of this
contract or performance of the obligations hereunder.
e. Delivery to the Contractor of
(1) a certificate of incumbency for the officers of the County executing
this Contract;
(2) The notice to proceed provided for in the definition of Construction
Commencement Date in Article I.
Either party shall give notice to the other party, with reasonable supporting
evidence, when in its opinion any of the above conditions have been met. The other
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party shall within fifteen (15) days give notice whether it agrees or disagrees that such
conditions have been met. If the conditions are believed not to be met, the reason for
this belief shall be so stated in the notice. If all of such conditions are not met to the
mutual satisfaction of the parties and resolution of the dispute is unlikely, then either
party shall have the right to discontinue perusal of this Contract.
Section 14.20 INTEREST. In The event any payment to be made hereunder is
not paid when due or if any payment to be made hereunder otherwise is to bear
interest, such payments shall be made pursuant to Hawaii Revised Statutes § 103-10 as
amended and the interest provisions set forth therein shall apply to payment due from
both parties.
Section 14.21 NOTICES. All notices, approvals, acceptances, consents, and the
like required or contemplated by this Contract shall be in writing and shall be deemed to
have been given when delivered personally or by messenger or received by the
addressee by registered or certified first class mail, return receipt requested, with
sufficient postage affixed, addressed as follows:
a. If to the County:
County of Hawaii
Department of Environmental Management
25 Aupuni Street, Room 210
Hilo, Hawaii 96720
Attention: Director
b. If to the Contractor:
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IN WITNESS WHEREOF, the parties have executed this Contract as of the date
first above written.
COUNTY OF HAWAII
HARRY KIM, Mayor
CONTRACTOR
By:
Title:
Federal ID No.
APPROVED AS TO CONTENT:
BARBARA BELL
Director
Department of Environmental Management
APPROVED AS TO FORM AND LEGALITY:
Deputy Corporation Counsel
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APPENDIX C
PROTOTYPE CONTRACT
FOR THE
OPERATION AND MAINTENANCE
OF A
MUNICIPAL SOLID WASTE
REDUCTION FACILITY
FOR THE
COUNTY OF HAWAII
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section Page No.
1.1 Definitions of Specific Terms 6
ARTICLE II
CONTRACT DOCUMENTS
2.1 Contract Documents 11
2.2 Order of Precedence of Documents 11
ARTICLE III
BENEFICIAL MATERIAL REUSE SERVICES
3.1 Agreement to Provide Beneficial Material
Reuse Services and Operate and Maintain Facility 11
3.2 Acceptance, Processing and Disposal of MSW
Rights of Contractor to Refuse to Accept MSW 12
3.3 Services and Utilities 14
3.4 Hours of Operation and Delivery of MSW at Facility 14
3.5 Shutdowns of the Facility 14
3.6 Changes to Facility 15
3.7 Compliance with Laws 16
3.8 Section Not Used
3.9 Performance Guarantee 16
3.10 Testing Equipment and Monitoring 17
3.11 Contractors Sole Responsibility for Energy and/or
Recovered Materials Shipped 17
ARTICLE IV
TERM OF CONTRACT
4.1 Term of Contract 17
4.2 Re-negotiation of Contract Term 18
4.3 Early Termination 18
4.4 Deleted 18
4.5 Survival 18
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ARTICLE V
FORCE MAJEURE AND STRIKES OR WALKOUTS
5.1 Inability by Contractor to Perform Due to Force Majeure 18
5.2 Inability by County to Perform Due to Force Majeure 18
5.3 Notification of an Event of Force Majeure 18
5.4 Municipal Solid Waste Processing and Disposal Services
During an Event of Force Majeure 19
5.5 Strikes or Walkouts 19
ARTICLE VI
DEFAULT AND TERMINATION OF CONTRACT
6.1 Events of Default by Contractor 19
6.2 Events of Default by the County 21
6.3 Termination on Occurrence of an Event of Default 21
6.4 Liquidated Damages on Termination for
Event of Default by the Contractor 22
6.5 Termination for Event of Force Majeure 22
6.6 Obligation of Contractor to Grant License and Supply Proprietary
Information to County; Assignment of Contracts on Termination;
and Training 23
6.7 Payments on Termination for Event of Default by the County 24
6.8 Limitation of Liability 24
ARTICLE VII
COMPENSATION; DETERMINATION OF FEES;
PAYMENTS; AND ADJUSTMENTS OF FEES
7.1 Contractor Compensation 25
7.2 Estimation of Municipal Solid Waste Tonnages 25
7.3 Establishment of the Annual Service Fee and
Monthly Service Fee Surcharge 25
7.4 This Section Is Not Used
7.5 Annual Adjustment 27
7.6 Payments to the Contractor 28
7.7 Adjustment of Service Fee and Service Fee Surcharge 29
7.8 Deleted
7.9 Payment and Adjustment for Diversion of Material
Due to Contractors Fault and/or Negligence 31
7,10 Payments and Adjustment for Shutdown of the Facility,
Other Than Contractors Fault and/or Negligence 32
7.11 Payments of Penalties 32
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PROTOTYPE OPERATIONS CONTRACT
ARTICLE VIII
CONFIDENTIALITY
8.1 Confidential and Proprietary Information 32
8.2 Identification of Confidential Information 32
8.3 Non-Disclosure of Confidential Information 32
8.4 Permitted Disclosure 32
8.5 Uniform Information Practices Act Requests; Legal Demands 33
8.6 Limitation on Use 33
ARTICLE IX
CONTRACT ADMINISTRATION
9.1 Contract Representatives 33
9.2 Site Representatives 33
9.3 Record Keeping, Reporting and County's Rights to Examine Records 33
9.4 County's Right to Audit 34
9.5 Office for County's Contract Representative 35
9.6 Wages and Hours 35
ARTICLE X
INSURANCE AND CONDEMNATION
10.1 General Provisions as to Insurance 35
10.2 Comprehensive Property Insurance 36
10.3 Comprehensive General Liability Insurance 36
10.4 Motor Vehicle Liability Insurance 37
10.5 Workers' Compensation 37
10.6 Payment of Premiums 37
10.7 Risk Retention 38
10.8 Disposition Proceeds of Insurance; Damages
in Excess of Insurance 38
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Representation and Warranties of Contractor 38
11.2 Representation and Warranties of the County 39
11.3 Further Assurances 40
11.4 Relationship of the Parties 40
11.5 Indemnity 40
11.6 Assignment of Contract 43
11.7 Binding Effect 43
11.8 Governing Law and Jurisdiction; No Sovereign Immunity 43
11.9 Waiver 43
11.10 Approvals, Consents and Agreements 43
11.11 Entire Agreement; Amendments 43
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11.12 Severability 43
11.13 Effect of Article and Section Headings and Table of Contents 44
11.14 Contract May Be Executed in Counterparts 44
11.15 Independent Third Party 44
11.16 Agreement as to Tax Exemptions, Grants and Other Benefits 44
11.17 Nondiscrimination in Employment 45
11.18 Advertisements 45.
11.19 Interest 45
11.20 Payments Contingent Upon Other Governmental Action, 45
11.21 Notices 45
Signature Page 46
LIST OF EXHIBITS
(NO EXHIBITS INCLUDED IN PROTOTYPE CONTRACT, TYPICAL EXHIBITS MAY
INCLUDE, BUT ARE NOT LIMITED TO THE FOLLOWING:)
EXHIBIT # CHARACTERISTICS AND QUANTITIES OF MUNICIPAL SOLID WASTE
EXHIBIT # PERFORMANCE GUARANTEES
EXHIBIT # GUARANTY AGREEMENT
EXHIBIT # LABOR AND MATERIAL PAYMENT BOND
EXHIBIT # ESTIMATE FOR CHANGE ORDER WORK
EXHIBIT # SELECTION OF AND RESOLUTION OF CONFLICTS BY
INDEPENDENT THIRD PARTY
EXHIBIT # PERFORMANCE BOND
EXHIBIT I# GENERAL CONDITIONS CF GOODS AND SERVICES CONTRACTS OF
THE COUNTY OF HAWAII
EXHIBIT # PLANS AND SPECIFICATIONS PROVIDED BY THE CONTRACTOR
EXHIBIT # PERFORMANCE TESTS PROVIDED BY THE CONTRACTOR)\
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PROTOTYPE OPERATIONS CONTRACT
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS OF SPECIFIC TERMS. The terms herein below shall, for the purpose
of this Contract, have the following definitions which are equally applicable to the single and plural forms of
any of the terms:
"All Laws" shall mean all applicable federal, state and local laws, ordinances, codes, regulations,
and court orders including, consent decrees, consent orders, consent agreements, judgements, decrees,
writs, determinations, or any like action of any government authority having jurisdiction applicable to any
activities associated with the Facility in effect as of the date of submission of the Pricing Proposal.
"Beneficial Material Reuse Services" shall mean and include all work performed by or on behalf of
the Contractor to receive Municipal Solid Waste and, Other Waste if included by the Contractor, and to
process these materials at the Facility at the Site into Energy and/or Recovered Materials and to market
such materials in accordance with the terms and conditions of this Contract.
"Billino Period" means each calendar month, except (1) the first billing period shall begin on the
Commercial Operations Date and shall continue to the last day of the month in which the Commercial
Operations Date occurs; and (2) the last billing period shall end on the last day of the term.
"Business Dav" means any day other than a Saturday, a Sunday, a day on which commercial
banking institutions are authorized or required by law, regulation or executive order to be closed in Hawaii
or a holiday specified by Section 8-1 of the Hawaii Revised Statutes.
"Capital Costs" shall mean the final adjusted Contract Price of the Construction Contract including
any changes thereto required as a result of Force Majeure or at the request or fault of the County and
made in accordance with the provisions of this Contract.
"County" shall mean the County of Hawaii.
"County Indemnified Parties" shall mean the County and County officers, employees and agents.
"Commencement Date" shall mean the latest date upon which the County and the Contractor have
both executed this Contract.
"Commercial Operations Date" shall mean the date upon which the Facility is first ready for normal
continuous operation at levels at least eighty-five (85%) of the performance required by Exhibit C of this
Contract, provided that the Contractor is in compliance with all of the material prerequisite requirements of
this Contract.
"Construction Contract" shall mean the Contract for Financing, Design, Engineering, Construction,
and Testing of the Facility for the County of Hawaii, as executed by the County and the Contractor.
"Contract" shall mean this Contract, including all Exhibits and documents incorporated herein and
all amendments, supplements, or modifications made by Addenda andlor change orders.
"Contract Completion Date" shall mean the twentieth (20th) anniversary of the Commercial
Operations Date.
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PROTOTYPE OPERATIONS CONTRACT
"Contract Documents" shall mean all documents, Pricing Proposal, agreements, submittals,
exhibits, specifications or rules directly included or incorporated into this Contract
"Contractors shall mean a corporation duly organized and existing under and by virtue of the laws
of the state of and authorized to do business in the State of Hawaii.
"Contractor Indemnified Parties" shall mean the Contractor, its parent companies, their affiliates,
lenders, and subcontractors, the Guarantor, their successors and assigns, and the respective officers,
directors, employees and agents of such persons.
"Finance Director" shall mean the Director of the Department of Finance of the County who is the
"Contracting Officer" for this project.
"Director of Environmental Management" shall mean the Director of the Department of
Environmental Management of the County who shall be the "Officer-in-Charge" for this project.
"Energy" shall mean all forms of energy including generated or utilized by the processing of
Municipal Solid Waste or Other Waste at the Facility.
"Facility" shall mean the Municipal Solid Waste Reduction Facility, all related and appurtenant
structures and equipment that are used to process these Municipal Solid Waste and Other Waste into
Energy and/or Recovered Materials.
"Fiscal Year" shall mean the Fiscal Year of the County which begins on July 1st of each year and ends
on June 30th of the succeeding year, except that the first Fiscal Year of this Contract shall be the period from
the date on which the Contract shall become effective to the following June 30th and the last Fiscal Year of this
Contract shall be the period from the July 1st preceding the Contract Completion Date to the Contract
Completion Date.
"Force Maieure" shall mean any act, event or condition which has had, or may reasonably be expected
to have, a material adverse effect on the rights or obligations of the parties under this Contract, or on the
Facility or the Site, or on the modification, operation, ownership, or possession thereof, or which results in a
partial or total curtailment of material services hereunder. Such acts, events or conditions shall be beyond the
reasonable control of the party relying thereon as justification for not performing an obligation or complying with
any condition required of such party under this Contract and shall include, but are not limited to, the following:
a. an Act of God such as a hurricane, earthquake, flood, landslide, lava flow, lightning, abnormal
storm, tornado, tsunami, impassable roadways or other cataclysmic phenomena of nature;
b. fires and explosions as a result of sabotage or other catastrophic disasters;
c. epidemics;
d. an act of the public enemy, war, blockade, insurrection, riot, civil disorder or disturbance, or
similar occurrence;
e. governmental preemption of materials in connection with a national emergency;
f. power or other utility failure;
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PROTOTYPE OPERATIONS CONTRACT
g. delays of subcontractors or suppliers solely as a result of a Force Majeure event to the extent
that substitute supplies, equipment or services are not reasonably available;
h. Strikes or walk outs except as set forth in Section 5.5 of this contract;
i. the order, judgement or other official governmental action of any federal, state, local or foreign
court, administrative agency, governmental office or body; or the suspension, termination,
interruption, delay in renewals or delay in approval by governmental authority of any permit,
license, consent or authorization resulting in a material change concerning or affecting the
obligations of the parties under this Contract except if caused by the fault and/or negligence of
the Contractor. The contesting or failure to contest of any such actions, in good faith, shall not
be considered as overriding any event of Force Majeure;
j. any material change in, or material change in interpretation or any announced, intended or
expressed change by governmental authority of, any federal, state, or local law, ordinance,
code, regulation or court order from those as interpreted or otherwise in effect on the date
of submittal of the Pricing Proposal resulting in a material change conceming or affecting
the obligations of the parties under this Contract except if caused by the fault and/or
negligence of the Contractor. The contesting or failure to contest any such actions, in good
faith, shall not be considered as overriding any event of Force Majeure;
k. the delivery by the County to the Contractor of Municipal Solid Wastes that do not meet the
definitional requirements as set forth in this Section 1.1;
I. the County's failure to use its reasonable efforts pursuant to Section 3.2.a. herein.
"Minimum Guaranteed Caoacity" shall mean the minimum throughput capacity specified by the
Contractor in the Pricing Proposal as Tons Per Year of Municipal Solid Waste.
"Guaranteed Processino Costs" shall mean the cost for processing of Municipal Solid Waste into
Energy and/or Recovered Materials, guaranteed by the Contractor in the Pricing Proposal, which is
adjusted in accordance with the terms of this Contract and which includes in it all costs in the Pricing
Proposal such as:
a. the costs of invoicing and mailing invoices (and required copies thereof for amounts owed
by the County, by private haulers, and by the purchasers of Recovered Materials;
b. engineering, audit, legal, and other expenses directly related to administration,•operation,
maintenance, and repair of the Facility;
c. if applicable, the costs associated with processing of any Other Wastes required by the
Contractors process and the disposal of unusable residues from such Other Wastes
including hauling and disposal fees;
d. costs of employee compensation including salaries, wages, and other compensation of
officers and employees plus applicable overhead and payment to pension, retirement,
health and hospitalization funds and other insurance, including self-insurance, for the
benefit of employees;
e. costs of maintenance, repairs, and replacements, consistent with reasonable and prudent
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PROTOTYPE OPERATIONS CONTRACT
contract operator practices, and all maintenance, repairs and replacements required as a
result of the Contractors fault and/or negligence, occurring during the term of this Contract;
f. costs of equipment, materials, and supplies used during the term of this Contract, including
ordinary and current rentals of equipment or other property;
g. the costs of marketing Energy and/or Recovered Materials;
h. the costs and expenses of general administrative overhead of the Contractor allocable to
the use and operation of the Facility;
i. all other costs and expenses of administering, operating, maintaining, and repairing the
Facility in the routine normal course of business;
j. any profits and mark-up for performing the above functions;
k. the Capital Costs and the costs and expenses of financing the construction of the Facility;
and
I. all taxes, including the Hawaii General Excise Tax, required to be paid as a result of
services rendered by the Contractor in fulfilling its obligations under the Contract
Documents.
"Minimum Guaranteed Supply" shall mean TPY of Municipal Solid Waste to be delivered by
the County to satisfy the Contractor's Minimum Guaranteed Capacity as set forth in the Pricing Proposal.
"Guarantor" shall mean the person or persons who guarantee all or any part of the performance
obligations contained in this Contract, as set forth in Exhibit _ of this Contract.
"Independent Third Party" shall mean the consulting engineer or engineering firm with expertise in
the processing of Municipal Sold Waste (and, if applicable for the Contractors process, Other Wastes)
mutually selected pursuant to Section 11.15, by the County and the Contractor to perform services required
by this Contract.
"Municipal Solid Waste" (MSW) shall mean that garbage, trash, rubbish and refuse normally
disposed of by and collected from residential, commercial, military, institutional and industrial
establishments within the County, which may include but not be limited to leaves, twigs, grass and plant
cuttings, branches or tree trunks not in excess of five feet long or larger than nine inches in diameter,
paper, plastics, ferrous and non-ferrous metals, glass, discarded personal property such as bicycles and
baby carriages and other constituents that normally appear in household refuse; certain wastes which are
difficult to process such as leather or automotive and small vehicular tires, provided large quantities of such
wastes are not included within any one truckload, but which can be processed in small quantities when
mixed with other MSW. Commercial waste shall include, treated lumber, sludges such as tank twttoms
having calorific value and other commercial, military, institutional and industrial waste which is presently
being landfilled. Wastes in quantities and concentrations which require special handling in their collection
and/or processing and disposal such as bulky items and junked automobiles will not be delivered to the
Facility. Exhibit _ provides in general conditions, the quantity and characteristics of MSW which is
expected to be delivered to the Facility.
"Other Wastes" means waste other than MSW as approved by the County.
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PROTOTYPE OPERATIONS CONTRACT
"Performance Guarantees" shall mean the quality and quantity guarantees set forth in Exhibit _
of this Contract, as adjusted and as provided for in this Contract and in the Construction Contract.
"Performance Tests" shall mean the performance tests specified in Exhibit of this Contract.
"Person" shall mean any individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or government (or any agency or political subdivision thereof).
"Pricing Proposal" shall mean the pricing proposal submitted by the Contractor in its Best and Final
offer pursuant to the Request for Proposals, dated
"Recovered Materials" shall mean the final, non-hazardous, marketable product recovered from the
processing of Municipal Solid Waste and Other Wastes as provided in this Contract.
"Recovered Materials Revenues" shall mean any revenues derived from the sale of Recovered
Materials,
"Reimbursable Expenses" shall mean that component of the Service Fee representing known
categories of expenses subject to reimbursement as set forth in this Contract including:
a. premiums for insurance required pursuant to Article X which for the first three (3) years of
operation shall be guaranteed and thereafter paid in accordance with the terms and
conditions of the Contract Documents;
b. taxes, including the Hawaii General Excise Tax, and all other taxes (other than income
taxes based on net revenues), assessments, or payments in lieu thereof, which are
lawfully imposed on the Facility or the operation after the date of submittal of the Pricing
Proposal;
c. costs of utility services for water, gas, oil, electrical power and sewage, as applicable,
provided the annual quantities for water, power and sewage as specified in the
Contractor's Pricing Proposal are not exceeded and the cost are invoiced and paid based
on actual quantities used as metered by the utility.
"Service Fee" shall mean the annual fee to be received by the Contractor for performing Beneficial
Material Reuse Services as established in Article VII of this Contract.
"Service Fee Surcharge" shall mean any amounts earned by the Contractor for additional services
as provided in Article VII, which shall be paid monthly as provided in Article VII.
"Site" shall mean the land on which the Facility is located and described by the metes and bounds
in Exhibit of this Contract.
"Ton" shall mean two thousand (2,000) pounds.
"TPY' shall mean Tons Per Year.
"Week" shall mean a seven (7) day period commencing at 12:01 am. on Monday and ending at
midnight on the following Sunday.
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PROTOTYPE OPERATIONS CONTRACT
ARTICLE II
CONTRACT DOCUMENTS
Section 2.1 CONTRACT DOCUMENTS. The following documents, or, with respect to Exhibit
the specified portions as noted and amended therein are hereby incorporated into and made a part of this
Contract:
a. the Contractors Proposal (Including best and final offer).
b. all listed exhibits
c. Any addenda to the RFP.
d. Specification section of the RFP.
e. Special Provisions section of the RFP
f. General Terms and Conditions for Goods and Services dated July 1, 1994.
Section 2.2 ORDER OF PRECEDENCE OF DOCUMENTS. In the event of conflict among the
provisions of documents comprising this Contract, the order of precedence shall be as follows:
a. this Contract.
b. all listed exhibits.
c. The Contractor's Best and Final Offer
d. the Contractors Proposal.
1 e. Any addenda to the RFP.
f. Specification section of the RFP.
g. Special Provisions section of the RFP
n. General Terms and Conditions for Goods and Services dated July 1, 1994
ARTICLE III
BENEFICIAL MATERIAL REUSE SERVICES
Section 3.1 AGREEMENT TO PROVIDE BENEFICIAL MATERIAL REUSE SERVICES AND
OPERATE AND MAINTAIN FACILITY. The Contractor hereby covenants and agrees to provide Beneficial
Material Reuse Services to the County and to be paid for such services in accordance with and subject to
the terms and conditions of this Contract. The County hereby covenants and agrees to provide the
Contractor with full and unrestricted access to the Site as required for the provision of Beneficial Material
Reuse Services for a period of not less than twenty (20) years from the Commercial Operations Date. The
County also grants to the Contractor unrestricted non-exclusive rights to the use and enjoyment of all
easement rights that benefit the Site and are held by the County. Provided that the County and the
Contractor have reached agreement to continue operations pursuant to Section 4.2, the Contractor shall be
provided with the same access rights for a minimum of an additional ten (10) years beyond the initial twenty
(20) year period. The County hereby covenants and agrees that such access will provide the Contractor
with the access reasonably necessary to accomplish the Beneficial Material Reuse Services contemplated
by this Contract. The parties hereby acknowledge and agree that the Contractor will use the Facility to
provide such services hereunder.
Subject to the terms and provisions of this Contract, beginning on the effective date of this Contract
as provided in Article IV and throughout the term of this Contract, the County shall deliver Municipal Solid
Waste (MSW) to the Facility. The Contractor is responsible for collection of Other Waste that the Contractor
considers required for its operation. Processing of such Other Waste to a quality suitable for the
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PROTOTYPE OPERATIONS CONTRACT
Contractors process, including hauling and disposal of unusable residues, is considered incidental to and
included as part of the Beneficial Material Reuse Services and must be completed in conformance with the
conditions specified in the Contract Documents. At any time the Facility is shut down or partially operating,
the Contractor shall divert MSW to other County approved facilities. During any such period of shut down or
partial operation, the County shall continue to pay to Contractor the Service Fee and the Service Fee
Surcharge. The County covenants and agrees, so long as the Facility is operating in accordance with the
terms of this Contract, to deliver the Minimum Guaranteed Supply of MSW to the Facility and shall not
deliver or permit the delivery of such materials to any person other than the Contractor or its designee.
The Contractor hereby agrees to administer, operate, maintain, and repair the Facility, including the Site
and landscaping, and to manage the same, or cause the same to be managed, at all times during the term
of this Contract, in a prudent and efficient manner consistent with sound operating practices and in
accordance with All Laws and the Contract Documents, The Contractor shall from time to time during the
term of this Contract make and perform all maintenance, repairs and replacements to the Facility, as would
be performed by a reasonable and prudent Contractor, reasonable wear and tear excepted so that the
Facility may be operated beyond the initial term of the twenty (20) year operating period should the Parties
agree to extend the Contract as provided-for in Section 4.2. Provided however, that any Contractors
warranties and guarantees specified in this Contract shall not be extended or modified beyond the twenty
(20) year term. The Contractor shall also make all necessary repairs, renewals, corrections, replacements,
and substitutions required to correct any deficiency in the design, construction, or performance testing of
the Facility to the extent such deficiency has a material adverse impact upon the obligations of the
Contractor regardless of when any such deficiencies may be discovered during this Contract and shall not
seek relief from such obligations through any statute of limitations applicable to the construction of the
Facility.
The Contractor shall be responsible for producing Energy andlor Recovered Materials suitable for
delivery and sale and shall use reasonable efforts to maximize the Recovered Materials Revenues. The
system for Beneficial Material Reuse Service including the sale of Energy andlor Recovered Materials shall
be operated in a manner consistent with normal standards for operations of such types and in accordance
with All Laws.
Simple stockpiling or storage of the Recovered Materials or disposal of the Recovered Materials in
a landfill (as opposed to beneficial reuse as a cover material) is not considered beneficial reuse.
The Contractor shall not use the Facility or the Site for any other purpose than to provide the
Beneficial Material Reuse Services called for in this Contract without the written approval of the County. If
approval is given and such other uses interfere with the services or performance of the Facility, the County
shall have a right to rescind such approval.
Section 3.2 ACCEPTANCE, PROCESSING AND DISPOSAL OF MSW: RIGHTS OF
CONTRACTOR TO REFUSE TO ACCEPT MSW. The Contractor shall, subject to the hereinafter stated
rights of refusal, accept, process, and dispose of, through beneficial reuse, all MSW delivered to the Facility
and all Other Waste collected, as provided in this Contract:
a. The County shall use commercially reasonable efforts to not deliver or cause to be
delivered to the Facility, MSW that does not meet the definition of MSW provided in Section 1.1 above or
that could cause substantial damage or materially affect the operations of the Facility and shall use
commercially reasonable efforts to ensure that the Facility does not become classified as a hazardous or
toxic materials storage or processing Facility as a result of such material being delivered by the County. In
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PROTOTYPE OPERATIONS CONTRACT
the event the County provides the Contractor material other than that defined in Section 1.1, then:
(1) the County shall be immediately notified of such failure;
(2) the Contractor shall stop shipment of Recovered Materials, if appropriate;
(a) the Contractor shall continue operations and store Recovered Materials
until new sampling results are received, if so decided;
(b) the Contractor shall clean up, remove, and dispose of such non-
conforming materials, if so decided.
(3) the Contractor shall be paid all actual and reasonable costs incurred in the
processing, storage, marketing, cleanup, removal, and disposal of such non-
conforming materials, and/or in the declassifying or cleansing of the Facility as a
Force Majeure condition and such costs shall be included in the Service Fee
Surcharge and;
(4) the County shall indemnify the Contractor as provided in Section 11.5.
The parties acknowledge that any partial or complete shutdown of the Facility for the
reason stated in this Paragraph 3.2.a. shall be considered an event of Force Majeure.
Should The County and the Contractor disagree on the costs incurred for this work, the
costs shall be submitted to The Independent Third Party far its decision.
b. The Contractor is permitted to refuse, but shall not unreasonably refuse, any material:
(1) delivered at other than the normal receiving hours of the Facility, or
(2) delivered during a Force Majeure event, to the extent such Force Majeure event
limits the Contractor s ability to perform under this Contract.
The County shall provide for alternative disposal of non-conforming materials MSW
refused by the Contractor in accordance with the provisions of this Section 3.2. at The
County's cost. MSW which the County and/or the Contractor documents was wrongfully
refused by the Contractor shall be considered as diverted MSW in accordance with
Section 7.9. The Contractor and/or the County shall have the right to review such
documentation and, if in disagreement, to submit same to the Independent Third Party for
its decision.
The County shall not be held responsible for The character or the quality of Other Wastes
and their impact on the Beneficial Material Reuse Services being provided under this
Contract. The Contractor shall be solely responsible for inspecting all such wastes and, if
unacceptable, refusing to accept them. Actions taken by the County, at the request of the
Contractor, to divert Other Wastes from its landfills to the Facility shall not be construed as
making the County responsible for such wastes.
The County shall not be drawn into any dispute between the Contractor and any private
hauler which the County in good faith has diverted from a landfill to the Facility at the
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PROTOTYPE OPERATIONS CONTRACT
request of the Contractor and which the Contractor has subsequently fumed away
because of the unacceptable character of Other Waste. Costs to settle such disputes shall
be the sole responsibility of the Contractor.
Section 3.3 SERVICES AND UTILITIES. The Contractor shall operate and maintain all internal on-
site services and facilities including water, sanitary facilities, water mains, water meters, fire hydrants, light,
power and telephone services, and other services and utilities required for the operation of the Facility. To
the extent not otherwise provided by utility companies or agencies, the Contractor shall provide for the
operation of off-site services and utilities of the character referred to above to ensure for proper operation
and maintenance of the Facility.
Section 3.4 HOURS OF OPERATION AND DELIVERY OF MSW AT FACILITY. Except as
otherv?ise provided in this Contract the Facility shall remain open to receive MSW on all days Monday
through Sunday from 7:00 a.m. to 4:30 p.m. including all holidays.
The County and the Contractor may by mutual agreement change the times during which the
Facility will be open to receive MSW, provided, however, that if any such change shall cause an increase in
the actual costs of operating the Facility, the County and the Contractor shall mutually agree to such
increases and such cost shall be paid as Service Fee Surcharge as provided in Section 7.3.
In the event of a natural disaster or other emergency condition the County may request the
Contractor to keep the Facility open and, if so requested, the Contractor shall use commercially reasonable
efforts to keep the Facility open to receive, accept, and process MSW for periods extending beyond the
normal receiving hours provided in this Section. The Contractor shall use commercially reasonable efforts
to comply with such request, provided, however, that the Contractors determination as to the extent it shall
be able to comply with any such request, if at all, shall be final and conclusive. In the event the Contractor
agrees to keep the Facility open beyond the normal hours of operation or operate the Facility in excess of
the Guaranteed Capacity and the actual costs of operating the Facility shall, as a direct result of such
emergency operation, increase over the actual costs of operating the Facility experienced during the most
recent monthly operating period immediately preceding such emergency operation, adjusted for the number
of days, the Contractor shall be entitled to receive a Service Fee Surcharge as provided in Section 7.3.
The Contractor shall control all traffic flow into and out of the Facility Site and the tipping and
shipping area and record the weights of material delivered and shipped.
MSW, prior to processing, shall be stored in an enclosed area and shall not be stored outside the
enclosed area except during an absolute emergency and written approval by the County.
If at any time the Facility, for any reason, is not operating or operable, and MSW must be diverted,
vehicles hauling such diverted material(s) may be weighed either at the Facility scales or at any other scale
designated by the County.
Section 3.5 SHUTDOWNS OF THE FACILITY. In the event that the Facilities partially or
completely shutdown, the parties shall assume the following responsibilities:
a. The Contractor shall notify the County that it intends to divert all or a specified portion of
the material normally received at the Facility to other disposal sites. At such time as the
Contractor is able to resume normal operation, the County shall be so notified by the
Contractor and shall resume the processing of materials at the Facility.
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1 b. The Contractor shall maintain normal security at the Facility and shall protect the
equipment by all reasonable means available during the period of the shutdown.
c. Each party shall cooperate with any efforts made toward getting the Facility back in
operation.
d. Payments shall be made in accordance with Article VII.
Section 3.6 CHANGES TO FACILITY. In the event that there is a change to the Facility, the parties
shall assume the fallowing responsibilities:
a. The Contractor shall have sole responsibility for the design and construction of any
changes to the Facility which involve or affect process equipment or the guarantees or
obligations of The Contractor and which the County and Contractor mutually deem
necessary or desirable for any reason during the term of the Contract. The cost for such
changes shall be paid for as set forth in b and c of this Section 3.6.
b. If any change to the Facility is required by the County or for reasons of Force Majeure, the
Contractor is not required to bear the costs, and the costs shall be paid for (i) from
insurance proceeds and then (ii) by the County as described in this paragraph. The
Contractor shall, within ninety (90) days from sending or receiving notice of such required
change, furnish the County with a statement of work and impacts, including:
(1) a firm bid for design and construction,
(2) a projected completion schedule,
(3) any adjustment to the Service Fee and/or the Service Fee Surcharge, resulting
from such change,
(4) any adjustment to Energy and/or Recovered Materials Revenues,
(5) any adjustment to the performance guarantees set forth in Exhibit C resulting from
such change, and
(6) the costs of developing the statement of work and impacts, which costs shall
constitute Reimbursable Expenses.
The County shall have the right to review, negotiate, and approve such change within thirty
(30) days of submittal by the Contractor. In the event the County and the Contractor fail to
agree to any material element of the change, such as scope of work, design and
construction costs, or adjustment to the Guaranteed Processing Costs, the matter will be
referred to the Independent Third Party for its decision.
The costs of making such changes shall constitute a Capital Cost and shall be paid for by
the County. Any increased costs of operation and maintenance or marketing as a result of
such changes shall be paid for by the County and shall be reimbursed to the Contractor in
the form of adjustments to the Service Fee and/or the Service Fee Surcharge.
c. The Contractor, with the concurrence of the County, may, at its expense, make such
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PROTOTYPE OPERATIONS CONTRACT
changes, modifications, or additions to the Facility it deems necessary or desirable,
provided that the guarantees and obligations of the Contractor are not affected. The
Contractor shall determine a schedule to incorporate such changes, modifications, or
additions to the Facility and shall bear all expenses for designing and making them,
including the purchase, delivery, and installation of the required equipment.
d. All changes to the Facility shall be incorporated into the record drawings.
Section 3.7 COMPLIANCE WITH LAWS. The Facility and any other properties used in the
performance of the Beneficial Material Reuse Services hereunder shall at all times during the term of this
Contract be operated and maintained in compliance with All Laws concerning such operation and
maintenance. It shall be the responsibility of the Contractor to track all changes andlor changes in
interpretation by governmental authority of such regulatory requirements and to take timely action to assure
compliance and nothing in this Contract shall be construed to relieve the Contractor of this responsibility.
Neither the County nor the Contractor shall, however, be deemed to have breached these obligations in
respect of any period during which it may in good faith be contesting the validity or application of any such
law or regulation or be diligently attempting to comply therewith, provided that the party whose actions
cause penalties and fines to be incurred during such periods shall be responsible for Their disposition
Notwithstanding any other provisions of this Contract, the Contractor shall not be obligated hereby
to take any action which, in its reasonable judgements, would result in the violation of any statute or
govemmental rule, regulation or requirement, or adversely affect the operation of the Facility or the
performance of its duties hereunder
In the event any material changes in interpretation by governmental authority of any existing
federal, state, or local laws, ordinances, codes, regulations, or court order so the adoption or issuance of
new or amended ones shall occur and become effective, such event shall constitute an event of Force
Majeure and the Contractor shall take all steps necessary to comply with such changes in accordance with
Section 3.6 and Article V. If any such changes necessitate an adjustment of the Service Fee or Service Fee
Surcharge such adjustment shall be made as provided for in Article VII of this Contract. In the event the
County and the Contractor fail to agree to such adjustment, the matter will be referred to an Independent
Third Party for binding resolution.
Section 3.8 Not Used
Section 3.9 PERFORMANCE GUARANTEE. The Contractor hereby guarantees, and the
Guarantor by execution and delivery of the guaranty agreement provided in Exhibit has
guaranteed, that the Facility shall meet the Minimum Guaranteed Capacity as set forth in Exhibit ,
subject to adjustment as provided in this Contract.
a. If the Facility pursuant to the terms of the Construction Contract was only conditionally
accepted at eighty five percent (85%) capacity or greater but less than one hundred
percent (100%) of the Minimum Guaranteed Capacity, corrective action shall be
undertaken by the Contractor as follows:
(1) The Contractor shall, within Three hundred sixty-five (365) days from the date of
conditional acceptance, take corrective action and demonstrate the Facility is in
full compliance. Failure to fulfill this requirement shall subject the Contractor to the
remedies available to the County in Section 7.7c. Upon notification by the
Contractor, the County shall deliver the adequate amount of MSW quantities for
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PROTOTYPE OPERATIONS CONTRACT
the Contractor to demonstrate full compliance of the Facility with the Guaranteed
Capacity.
(2) If the MSW quantities delivered by the County during the Performance Test were
inadequate for the Contractor to demonstrate full compliance of the Facility with
the Minimum Guaranteed Capacity requirement and if operational experience with
increased MSW quantities indicate the Facility may be capable of full compliance
with the Guaranteed Capacity, upon written notice, the County may waive the
requirement for a Performance Test if it is satisfied the performance guarantees
can be met.
b. If Performance Tests have shown that the Facility is capable of meeting the Minimum
Guaranteed Capacity requirement but operational results show that the Facility cannot
achieve the guaranteed performance (as adjusted), the Contractor shall take appropriate
action to correct the Facility or components thereof by adjustment, repair in place,
replacement of defective or inadequate parts, or adjustment of the methods of operation of
the Facility, so that the Facility will be capable of achieving the guaranteed performance,
except as otherwise excused by this Contract.
It is understood and agreed that, anything to the contrary in the foregoing notwithstanding,
operation of the Facility less than one hundred percent (100%) of the performance guarantees set forth in
Exhibit B (as adjusted) shall not relieve the Contractor of the conditions set forth in Section 7.9 of this
Contract. Should the County and the Contractor disagree on whether the Facility is meeting or has the
1 capability to meet the performance guarantees, the dispute shall be submitted to the Independent Third
Party for its decision.
Section 3.10 TESTING EQUIPMENT AND MONITORING. The Contractor shall provide and
maintain or cause to be provided and maintained sufficient equipment and instrumentation to test, monitor,
and control the process and all pollution control equipment installed at the Facility. The Contractor shall
perform or cause to be performed such monitoring and laboratory analyses as may be required relating to
the operation of the Facility to show compliance with the requirements of this Contract and with All Laws.
The Contractor shall cooperate with the County, its designated agents and other governmental authority for
demonstrations of compliance with such requirements.
Section 3.11 CONTRACTORS SOLE RESPONSIBILITY FOR ENERGY ANDIOR RECOVERED
MATERIALS SHIPPED. It is expressly understood that under no circumstances will the County be
responsible any permit, license, approval, etc. required for the application, marketing, sale, use, etc. of the
Energy and/or Recovered Material from the Facility. Provided that the County delivers Municipal Solid
Waste to the Contractor as required by this Contract, the Contractor shall assume all responsibility for
assuring that all Energy and/or Recovered Material are suitable for beneficial reuse and meets the
requirements of all laws for delivery and use of Energy and/or Recovered Materials. All risks associated
with the quality of or the sale or use of the Energy and/or Recovered Material shall not be considered an
event of Force Majeure and shall be the sole responsibility of the Contractor.
ARTICLE IV
TERM OF CONTRACT
Section 4.1 TERM OF CONTRACT. This Contract shall become effective on the Commercial
Operations Date and shall continue, subject to provisions of this Contract, to the Contract Completion Date.
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PROTOTYPE OPERATIONS CONTRACT
Section 4.2 RENEGOTIATION OF CONTRACT TERM. The Contract term may be extended by
mutual agreement by both parties as follows. In the seventeenth (ntn) year of this Contract negotiations
may take place to develop a new Beneficial Material Reuse Services Contract to extend the Contract term
for an additional ten (10) years and to adjust the conditions and requirements of the Contract. If no,
Contract is agreed upon prior to the Contract Completion Date, all rights, responsibilities, and privileges
associated with this Contract shall become null and void.
Section 4.3 EARLY TERMINATION. This Contract may be terminated for valid and just reasons as
defined in this Contract.
Section 4.4 DELETED.
Section 4.5 SURVIVAL. Notwithstanding the foregoing, the following sections of this Contract shall
survive the Contract Completion Date or termination date in accordance with their respective terms. Said
sections include, but are not limited to sections: 6.6, 7.11 ,8.1, 8.2, 8.3, 9.3, 9.4,11.5, and 11.8. To the
extent that any third party claims are unresolved as of the Contract Completion Date, sections of this
Contract addressing such claims shall also survive the Contract Completion Date or termination date until
their final disposition.
ARTICLE V
FORCE MAJEURE AND STRIKES OR WALKOUTS
Section 5.1 INABILITY BY CONTRACTOR TO PERFORM DUE TO FORCE MAJEURE.
Notwithstanding any other provisions to the contrary in this Contract, if an event of Force Majeure should
occur, then in any such event, the non-performance of Contractor under this Contract caused by the Force
Majeure event shall be excused and the Contractor shall incur no liability for liquidated damages or
penalties as a result of such delay, provided, however, that the above shall not relieve either party of any
liability for the payment of any amounts due or becoming due.
Upon the occurrence of any such event of Force Majeure, under this Section, the Contractor shall
be required to perform only such terms and conditions as possible until the Force Majeure event has been
removed. The County shall provide such reasonable assistance to the Contractor as may be available to
eliminate or mitigate the effects of such Force Majeure event.
Section 5.2 INABILITY BY COUNTY TO PERFORM DUE TO FORCE MAJEURE. Upon The
occurrence of any such event of Force Majeure under this Section, the County shall be required to perform
only such terms and conditions as possible until the Force Majeure event is removed except that delays in
payment to the Contractor of any amounts due or becoming due as provided herein shall not be considered
events of Force Majeure. If the inability to perform by the County shall result in a delay in the Contractor's
performance hereunder or in the Contractor's inability to perform, the provisions of Section 5.1 shall apply.
Section 5.3 NOTIFICATION OF AN EVENT OF FORCE MAJEURE. No adjustment to this Contract
shall be made for reason of an event of Force Majeure unless a written application is filed by the Contractor
or the County within fourteen (14) calendar days after the commencement of any actual suspension or
reduction of operations caused by the Force Majeure event. The application shall state in reasonable detail
the causes, the effect to date and the probable future effect on the performance of this Contract and the
portion or portions of the Facility affected. The impact of such Force Majeure event, if any, shall be
determined by documentation submitted by the Contractor or by the County.
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PROTOTYPE OPERATIONS CONTRACT
It is understood that costs to correct the Force Majeure condition shall be paid solely from
insurance proceeds and the County shall have no obligation to provide any additional funds. It is further
understood that the County may permit other adjustments to the Contract as a result of the Force Majeure
condition. However, the County has no obligation to do so.
In the event the Contractor and the County do not agree on the documentation, the matter shall be
referred to the Independent Third Party for binding resolution. No such adjustments shall be deemed a
waiver of the right of the County to require the performance of the Contractor under this Contract or waive
the rights of either party under this Contract.
Section 5.4 MUNICIPAL SOLID WASTE PROCESSING AND DISPOSAL SERVICES DURING AN
EVENT OF FORCE MAJEURE. During any period in which the Facility is partially or completely shut down
due to an event of Force Majeure, then:
a. the Contractor shall assist the County in determining alternate disposal procedures for
Municipal Solid Waste not processed by the Facility and shall render to the County such
alternate Beneficial Material Reuse Services as the Contractor is capable of providing; and
b. the Contractor shall continue to receive the Service Fee and Service Fee Surcharge for
such Beneficial Material Reuse Services pursuant to Section 710.
Section 5.5 STRIKES OR WALKOUTS. Strikes, walkouts, lockouts, work slow down or similar
industrial or labor action of Contractors personnel at the Facility or such other Contractor locations which
result in a reduction in operating capacity or a shutdown of the Facility shall be considered under the
Contractors control only during the first fifteen (15) days of such occurrence within any period of one
hundred eighty (180) consecutive days. During such period the Contractor shall be responsible to comply
with all terms and conditions of the Contract. Any such event, excluding lockouts, of greater frequency or
duration or any such similar event of any frequency or duration by any work force other than the
Contractors shall be deemed to be an event of Force Majeure as defined in this Contract. Notwithstanding
anything to the contrary in the foregoing, no event or action described in this Section 5.5 with respect to
Contractors personnel shall be deemed to have been beyond the reasonable control of the Contractor if:
a. it is found by a final adjudication by an arbitrator, by a court of competent jurisdiction or by
any agency with statutory or regulatory authority over such matters that such event or
action between the Contractor and the pertinent collective bargaining unit was principally
caused by the Contractors breach of the applicable collective bargaining agreement and/or
the Contractors refusal to negotiate in good faith; and
b. such event or action was fomented and/or perpetuated by the Contractor for the purpose
of interfering with, delaying, or influencing a decision about the Contractors performance
under this Contract.
The County, at its option, may observe any labor meeting and negotiations required to settle such
strikes, walkouts or similar industrial or labor actions.
ARTICLE VI
DEFAULT AND TERMINATION OF CONTRACT
Section 6.1 EVENTS OF DEFAULT BY CONTRACTOR. The occurrence of any of the following at
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PROTOTYPE OPERATIONS CONTRACT
1 any time during the term of this Contract shall constitute an Event of Default by the Contractor:
a. persistent or repeated failure of a material nature or refusal by the Contractor to perform its
material obligations under this Contract, other than those obligations for which adjustment
of the Service Fee or payment of penalties or liquidated damages is the specified remedy,
unless such failure or refusal is determined to have been caused by Force Majeure or an
Event of Default by the County; or
b. abandonment of the Facility by The Contractor or the discontinuance by the Contractor of
the Beneficial Material Reuse Services under this Contract unless such discontinuance is
caused by Force Majeure or an Event of Default by the County; or
c. shutdown of the Facility by governmental authority because the Facility is not in material
and consistent compliance with the requirements of any federal, state or local laws,
ordinance, code, regulation or court order or any interpretations thereof which were
already existing and known and not changed as of the date of the Pricing Proposal; or
d. written admission by the Contractor or the Guarantor that it is bankrupt or the filing by the
Contractor or the Guarantor of a voluntary petition under any bankruptcy or insolvency act
or the consent by the Contractor or the Guarantor to a court appointment of a receiver or
trustee for all or substantially all of its property or business, or the making by the
Contractor or the Guarantor of any arrangement with or for the benefit of its creditors
involving an assignment to or composition with a trustee, receiver or similar fiduciary,
regardless of how designated, of any portion of the Contractors or the Guarantors property
or business provided that the foregoing shall not be an Event of Default if such event was
caused and would not otherwise have occurred in the absence of an event of Force
Majeure or an Event of Default by the County; or
e. the filing of an involuntary petition in bankruptcy under any bankruptcy or insolvency act by
a third party against the Contractor or the Guarantor, which petition is not discharged or
stayed within sixty (60) days, provided that the foregoing shall not be an Event of Default if
such event was caused and would not otherwise have occurred in the absence of an event
of Force Majeure or an Event of Default by the County; or
f. the insolvency of the Contractor or the Guarantor or the failure or inability of the Contractor
or the Guarantor to pay its debts as and when they fall due, which condition has a material
and adverse effect on the Facility provided that the foregoing shall not be an Event of
Default if such event was caused and would not otherwise have occurred in the absence of
an event of Force Majeure or an Event of Default by the County; or
g. a default by the Contractor or the Guarantor with respect to any obligation to any third
party which (i) may permit any third party, either immediately or following notice andlor the
passage of time, to accelerate the maturity of any obligation of the Contractor or the
Guarantor, to assume control of the Contractor or to take possession of or transfer or
cause to be transferred to any third party any material portion of the assets of the
Contractor or the Guarantor, and which (ii) has a material and adverse effect on the
Facility, provided that the foregoing shall not be an Event of Default if such event was
' caused and would not otherwise have occurred in the absence of an event of Force
Majeure or an Event of Default by the County.
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PROTOTYPE OPERATIONS CONTRACT
Section 6.2 EVENTS OF DEFAULT BY THE COUNTY. The occurrence of any of the following
events at any time during the term of this Contract shall constitute an Event of Default by the County:
a. persistent or repeated failure of a material nature or refusals by the County to perform its
obligations under this Contract unless such failure or refusal is caused by Force Majeure
or an Event of Default by the Contractor; or
b. failure by the County to pay any undisputed amount payable and due under this Contract
within sixty (60) days after receipt of invoice; or
c. written admission by the County that it is bankrupt, or the filing by the County of a
voluntary petition under any bankruptcy or insolvency act, or the consent by the County to
a court appointment of a receiver or trustee for all or substantially all of its property or
business, or the making by the County of any arrangement with or for the benefit of its
creditors involving an assignment to or composition with a trustee, receiver or similarly
fiduciary regardless of how designated of any material portion of the County's property or
business; or
d. filing of an involuntary petition in bankruptcy under any bankruptcy or insolvency act by a
third party, against the County, which petition is not discharged within sixty (60) days; or
e. insolvency of the County or the failure or inability of the County to pay its debts as and
when they fall due.
1 Section 6.3 TERMINATION ON OCCURRENCE OF AN EVENT OF DEFAULT, If an Event of
Default under Sections 6.1 or 6.2 shall occur and extend for a period of forty-five (45) days after receipt of
written notice of such Event of Default from the non-defaulting party, then the non-defaulting party may, at
its option, terminate this Contract by delivering written notice of such termination to The party in default
and/or may institute such legal action or proceedings or resort to such other remedies as it deems
necessary. If, however, prior to the end of such forty-five (45) day period, the party in default has
commenced:
a. appropriate steps to correct such default and is diligently prosecuting same to completion
b. Independent Third Party proceedings with respect to the alleged default, then The party
not in default may not terminate this Contract.
If, however, the party in default fails to diligently prosecute appropriate steps pursuant to Section
6,3(a) above, or fails to proceed diligently with Independent Third Party proceedings pursuant to Section
6,3(a) above, or if the Independent Third Party rules against the party in default and such party elects not to
appeal into Court pursuant to Section 11.15, then the party not in default may terminate this Contract. If the
parties disagree on whether appropriate steps are being taken, the matter shall be referred to the
Independent Third Party for resolution. The County shall continue to make Service Fee and Service Fee
Surcharge payments due during such cure and/or dispute resolution period, provided that the Contractor is
diligently prosecuting a cure to completion or diligently proceeding with dispute resolution.
' A termination shall be effective on the date of written notice of termination to the party in default
and shall not prejudice any rights of the non-defaulting party.
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PROTOTYPE OPERATIONS CONTRACT
'1 Section 6.4 LIQUIDATED DAMAGES ON TERMINATION FOR EVENT OF DEFAULT BY THE
CONTRACTOR. If the Contractor commits an Event of Default and fails to cure such default in accordance
with this Contract and This Contract is then terminated by the County pursuant to Section 6.3, the
Contractor shall be liable for damages to the County.
a. It is understood and agreed by the parties that:
(1) the County shall be damaged by an Event of Default of the Contractor and the
termination of this Contract as a result thereof,
(2) it would be impractical or extremely difficult to fix the actual damages resulting
therefrom,
(3) the sums which would be payable in accordance with the terms herein are in the
nature of liquidated damages, and not a penalty, and are fair and reasonable, and
(4) such payments represent a reasonable endeavor by the parties to estimate a fair
compensation for the losses that may be reasonably anticipated from such
termination.
b. The Contractor shall be liable to the County and shall pay to the County on demand the
amount of Three Million Dollars ($3,000,000) as liquidated damages;
1 c. Should the County choose to keep the Facility, then the Contractor and the County shall
agree on the price and the liquidated damages noted above shall be used to reduce the
price to be paid by the County. Should the County choose not to keep the Facility, then in
addition to payment of the above liquidated damages, the Contractor shall remove the
Facility and restore the Site to its original condition less any grading or completion of
underground utilities.
The remedy set forth in this Section 6.4 shall be the County's sole and exclusive remedy for the
Contractors failure to complete its obligations under this Contract and the Contractor shall have no other
liability to the County under this Contract, either in law or in equity. In the event of such payment of
liquidated damages, the County shall have no obligation to the Contractor for any Contractor cost including
the Capital Cost as defined or required in this Contract.
Section 6.5 TERMINATION FOR EVENT OF FORCE MAJEURE. If an event of Force Majeure
severely impacts the ability of the Facility to be repaired and operated and the County and-the Contractor
mutually agree That termination of the operation and the Contract is the best recourse or upon receipt of
the decision by the Independent Third Party that an event of Force Majeure has occurred and cannot be
corrected during the term of this Contract and that termination for Force Majeure should therefore proceed,
then the proceeds from insurance required under Article X shall be paid directly to the County and used to
make payment to the Contractor for direct cost incurred to date by the Contractor under the terms of this
Contract and the County shall have no obligation to make any other payments from any other source.
Costs such as, but not limited to, losses incurred as a result of the negotiated price being too low, cost
overruns unrelated to the Force Majeure, and indirect costs such as extended overhead are not wnsidered
direct costs and shall not be paid. The Contractor shall maintain complete documentation to substantiate its
cost and to enable expeditious prosecution of payment. Any disagreements as to the amount of such cost
to be paid to the Contractor shall be submitted to the Independent Third Party for its decision.
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PROTOTYPE OPERATIONS CONTRACT
1 Under such conditions it is agreed that:
a. The Contractor shall be not be liable to the County and shall not pay to the County
liquidated damages;
b. The Contractor shall remove the Facility and restore the Site to its original condition less
any grading or completion of underground utilities.
Section 6.6 OBLIGATION OF CONTRACTOR TO GRANT LICENSE AND SUPPLY
PROPRIETARY INFORMATION TO COUNTY; ASSIGNMENT OF CONTRACTS ON TERMINATION: AND
TRAINING. In addition to all other rights or remedies, in The event this Contract is terminated pursuant to
this Article VI, the Contractor may negotiate with the County wherein the County at its option could acquire
the Facility including the Site or the lease of the Site, easements and all property of whatsoever kind or
nature related thereto, whether contained thereon, therein or elsewhere (or their leases) as mutually
agreed, with the understanding that the Contractor would vacate the Facility in its existing or original
condition.
In such event, the Contractor shall grant the County full possession, control, use and occupancy of
the Facility and the Site, easements and all property of whatsoever kind or nature related thereto, whether
contained Thereon, therein or elsewhere. The Contractor shall cooperate so as to avoid interruption of the
processing and to minimize costs and expenses to the County in securing continuity in the operation and
maintenance of the Facility.
# The Contractor shall also assign or grant to the County a nonexclusive and irrevocable license,
iI with respect to all patents, processes, trade secrets, and know-how needed to operate and maintain the
Facility.
a. If this Contract is terminated because of an Event of Default by the Contractor, such
license shall be transferable and the County shall not be required to make any royalty
payments for such license.
b. In the event this Contract is terminated due to Force Majeure, the license shall be non-
transferable and The County shall purchase such license outright or make equitable
payments for royalties for such license.
To the extent they are assignable and transferable, the Contractor shall assign and transfer, if
deemed by the County to be to the benefit of the County or any subsequent operator of the Facility, all
labor contracts, atl maintenance contracts, all supply contracts, and/or all contracts for the sale of Energy
and/or Recovered Materials of the Facility.
Upon purchase of the Facility by the County as a result of termination of the Contract, the
Contractor shall supply, at their fair market price, any proprietary components and products needed for the
continuing operation and maintenance of the Facility, subject to their continued availability and provide
specifications and shop drawings for all such proprietary components and products to the County.
The Contractor also shall grant the County the right to use such documents to foster competitive bidding for
the proprietary components and products if the Contractor no longer continues to provide such components
and if alternative components having the same function and use and which are compatible with the Facility
are unobtainable at reasonable cost.
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PROTOTYPE OPERATIONS CONTRACT
The Contractor shall use all reasonable efforts and provide documentation thereof, to obtain
conditions similar to The provisions of this Section with each of its subcontractors and suppliers.
In the event that proprietary information is delivered to the County under the terms and conditions
of this Section, to protect the proprietary position of the Contractor, the County agrees to take all
reasonable measures to protect and keep confidential such proprietary information.
The Contractor shall cooperate with the County or any other party chosen to operate the Facility by
providing initial training and data as may reasonably be agreed upon by the Contractor and The County to
be necessary, subject only to the agreements with respect to proprietary information contained herein, and
the Contractor shall be paid its reasonable costs and expenses therefor.
Further, the County, at its sole discretion, shall have the option to require the Contractor to
continue to operate the Facility until either:
a. the expiration of one hundred eighty (180) days after the date of such termination, or
b. the date on which a new party is substituted for the Contractor, whichever occurs first; and
c. the County shall make payments to the Contractor for the continued service as if the
Contract remained in effect.
Section 6.7 PAYMENTS ON TERMINATION FOR EVENT OF DEFAULT BY THE COUNTY. If the
County commits an Event of Default and fails to cure such default in accordance with this Contract and this
Contract is terminated by the Contractor pursuant to Section 6.3, the liabilities of the County to the
Contractor are limited to (1) the costs incurred to date by the Contractor under the terms of this Contract
and not paid for by the County, and (2) other direct costs that can be substantiated and (3) the County shall
either continue payments of debt service or payoff the debt as it so chooses and the County shall own the
Facility. The Contractor shall not be entitled to any other payments including claims for lost profit or other
damages. Costs such as, but not limited to, losses incurred as a result of the bid being too low, cost
overruns unrelated to the County's Default, and indirect costs such as extended overhead are not
considered direct costs and shall not be paid. The Contractor shall maintain documentation of its expenses
to enable expeditious prosecution of the remedies. Payment of such liabilities shall be made as provided by
law.
Section 6.8 LIMITATION OF LIABILITY. Notwithstanding the payments to be made under Sections
6.4, 6.5 and 6.7, upon the effective date of termination, the liability and obligations of the parties hereunder
shall terminate except that:
a. the parties shall pay any other sums accrued to the other party and remaining unpaid on
the effective date of termination, and
b. the parties shall remain obligated pursuant to Sections 6.6 and 11.5.
The parties acknowledge and agree that because of the unique nature of the Facility, it is difficult or
impossible to determine with precision the amount of damages that would or might be incurred by either
party as a result of a breach of this Contract by the other party. Accordingly, the parties agree that the party
causing the breach (herein the breaching party") shall be liable and obligated to pay only those damages
and other amounts as may be specifically due and payable in accordance with the terms of this Contract.
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PROTOTYPE OPERATIONS CONTRACT
1 In no event, however, whether based upon Contract, tort, warranty, or otherwise arising out of the
performance or nonperformance by either party under this Contract or any subcontract, shall the breaching
party be liable for or obligated in any manner to pay remote, consequential or indirect damages, or any
other amounts, except as hereinabove provided.
ARTICLE VII
COMPENSATION; DETERMINATION OF FEES;
PAYMENTS; AND ADJUSTMENTS OF FEES
Section 7.1 CONTRACTOR COMPENSATION. In consideration for the Beneficial Material Reuse
Services provided by the Contractor in accordance with this Contract, the Contractor shall be compensated,
at the times and in the manner set forth herein. For processing and disposing of tonnage received at the
Facility, as mutually estimated annually by the County and the Contractor, the Contractor shall be entitled
to receive the annual Service Fee. In addition the Contractor shall also be entitled to receive the monthly
Service Fee Surcharge for processing and disposing of tonnage in excess of that estimated to be received
at the Facility, for moisture content adjustments, events of Force Majeure, County requested changes
andlor extended and emergency operations as provided for in Section 3.4.
Section 7.2 ESTIMATION OF MUNICIPAL SOLID WASTE TONNAGES. The Minimum
Guaranteed Supply is defined in Article I herein as the quantity of Municipal Solid Waste to be delivered by
the County to the Contractor.
As the total Guaranteed Processing Cost and the Reimbursable Expenses and thus the annual
Service Fee will be affected by changes in quantities and quality arising from changes noted above, prior to
the commencement of each Fiscal Year the County and the Contractor shall agree on the Estimated
Annual Supply of Municipal Solid Waste expected to be delivered by the County to the facility-in the
forthcoming Fiscal Year or portion thereof for which the annual Service Fee is being established. Such
estimates shall be used to establish the Service Fee each year. If the County and the Contractor cannot
agree on the estimated annual supply, the amount processed in the most recent twelve (12) month period,
adjusted for down time of the Facility and prorated for the number of months of operation in the coming
Fiscal Year, shall be used. With respect to the period of time between the date this Contract becomes
effective in accordance with Section 4.1 and the end of the Fiscal Year in which such effective date occurs,
The Estimated Annual Supply of Municipal Solid Waste from the County shall be estimated and prorated for
the portion of the year of operation. Should the Contractor and the County fail to agree on the Estimated
Annual Supply of Municipal Solid Waste from the County, the mailer shall be referred to the Independent
Third Party for its decision.
Section 7.3 ESTABLISHMENT OF THE ANNUAL SERVICE FEE AND MONTHLY SERVICE FEE
SURCHARGE. The Service Fee and Service Fee Surcharge shall be established as follows:
a. With respect to the period of time between the date this Contract becomes effective in
accordance with Section 4.1 and the end of the Fiscal Year in which such effective date
occurs, and with respect to each succeeding Fiscal Year, the County and the Contractor
shall, in accordance with this Contract, jointly determine the Service Fee for such Fiscal
Year or portion thereof. With respect to the first Fiscal Year or portion thereof, it is the
intent of the parties to cooperate to establish the Service Fee for such fiscal Year or
portion thereof prior to the effective date of this Contract. With respect to each succeeding
Fiscal Year, the parties shall establish the Service Fee for such succeeding Fiscal Year by
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the end of the ninth (9th) month of the then-current Fiscal Year. In order to establish the
Service fee, the County and the Contractor, using the Estimated Annual Supply of
Municipal Solid Waste from the County, as estimated pursuant to Section 7.2, shall
establish the anticipated values of the following components, the aggregate of which shall
be the Service Fee:
(1) an amount equal to the Guaranteed Municipal Solid Waste Processing Cost
established in the Pricing Proposal, adjusted from time to time as set forth in
Section 7.7, and further adjusted for any estimated savings that would be realized
due to an Estimated Annual Supply of Municipal Solid Waste that is higher or
lower than the Minimum Guaranteed Supply of Municipal Solid Waste used in
calculating the Pricing Proposal, prorated monthly for the first and last Fiscal
Years; plus
(2) an amount equal to the estimated annual Reimbursable Expenses defined in
Article I hereof and established in Exhibit II of the Pricing Proposal. Each month
the Contractor will be paid one-twelfth (1/12th) of the estimated annual
Reimbursable Expenses. At the end of each fiscal year, the County and the
Contractor will determine the actual annual Reimbursable Expenses and
adjustment will be made as provided for in Section 7.5;
(3) an amount equal to the Annual Capacity Charge established in Exhibit III, line 1, of
the Pricing Proposal. Each month the Contractor will be paid one-twelfth (1/12) of
the Annual Capacity Charge;
(4) a deductive amount equal to the Revenues from sale of energy andlor recovered
materials as described in Exhibit III, line 10. Each month the Contractor shall
deduct the Revenues from the previous month from the above payments due.
When determining the Service Fee, the County and the Contractor, or the Independent
Third Party, as the case may be, shall include the actual sums of all of the components of
the Service Fee as set forth in this Section 7.3 applicable at the time of establishment of
The Service Fee if such sums are known or the best available projections or estimates of
them if the actual sums are not known. The Service Fee as determined above shall be firm
and, except for the annual adjustment provided for in Section 7.5, shall remain in effect
throughout the Fiscal Year.
If the parties have not established the Service Fee by the effective date of this Contract for
the first Fiscal Year or by the end of the ninth (9th) month of the then current Fiscal Year
for each succeeding Fiscal Year then the mailer shall be submitted to the Independent
Third Party who shall make such determination within ten (10) days with respect to the first
Fiscal Year or portion thereof, or by the end of the tenth (10th) month of the then-current
Fiscal Year for each succeeding Fiscal Year.
b. The monthly Service Fee Surcharge shall be calculated at the time of occurrence of any of
the related events and payable in accordance with Section 7.6 and shall be the aggregate
of the following components:
(1) in the event of emergency or extended operations pursuant to Section 3.4, an
amount equal to the Contractors actual costs in excess of the costs used in
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1 calculating the Service Fee;
(2) in the event of Force Majeure, or County requested changes, an amount equal to
the Contractors actual costs in excess of the costs used in calculating the Service
Fee;
(3) in the event that the Contractor accepts and processes Municipal Solid Waste in
any month in amounts that exceed one-twelfth (1112) of the Minimum Guaranteed
Supply an amount equal to (1) the product of the excess tons and seventy percent
(70%) of the cost stated in the Pricing Proposal divided by the Minimum
Guaranteed Supply;
(4) in the event that the Contractor accepts and processes Municipal Solid Waste for
which the higher heating value content differs by 5%, for a thirty (30) day or longer
period, from the value on which the Guaranteed Municipal Solid Waste Processing
Cost is based an adjustment to such cost shall be negotiated in accordance with
Section 7.7.
Should the County and the Contractor fail to agree on the Service Fee Surcharge, the
matter shall be submitted to the Independent Third Party for its decision.
Section 7.4 THIS SECTION IS NOT USED.
1 Section 7.5 ANNUAL ADJUSTMENT. Within twenty (20) days following the end of each Fiscal
Year during the term of this Contract, an annual adjustment shall be made for the just completed Fiscal
Year in accordance with the Pricing Proposal, this Section 7.5, and Sections 7.7 through 7.11 of this
Contract. The annual adjustments shall be aggregated for the Fiscal Year in question and shall be equal to:
a. Adjustments required of the annual Service Fee due to lower Municipal Solid Waste
quantities and actual documented conditions establishing lower total operating cost versus
those used in determining the Service Fee as provided for in Section 7.3;
b. Adjustments for actual Reimbursable Expenses incurred. The annual adjustment shall be
adjusted to reflect any consumption variances between the actual consumption use
charged by the Contractor for Reimbursable Expenses (i.e., oil, natural gas, water,
wastewater or electricity) and the consumption use amounts in the Pricing Proposal. In the
event efficiencies of operation are achieved and are not the result of variation in tonnage
as provided for in paragraph c of this Section 7.5 and the actual consumption use is less
than the consumption amounts used in the Pricing Proposal, the efficiency savings shall be
credited seventy five percent (75%) to the Contractor and twenty five percent (25%) to the
County. There will be no adjustment should the actual consumption use be greater than
the consumption amounts used in the Pricing Proposal except as provided for in paragraph
of this Section 7.5. In the event the actual tonnage of Municipal Solid Waste delivered by
the County should vary by greater than ten percent (10%) from the Guaranteed Supply,
the consumption use submitted by the Contractor in the Pricing Proposal for consumption
1 of Reimbursable Expenses shall be adjusted to reflect the resulting changes in Facility
efficiently.
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c. Other adjustments as hereafter provided for in Sections 7.7 through 7.11 which may have
occurred at any time during the Fiscal Year.
The County shall have the right to review such costs, and if the parties cannot agree to the
adjustment required herein, the matter shall be referred to an Independent Third Party for decision.
In determining the annual adjustment the adjusted Service Fee shall be compared to the Service
Fee paid to the Contractor for the Fiscal Year iri question. If the adjusted Service Fee is greater than the
Service Fee actually paid to the Contractor, the County shall pay the difference. If the adjusted Service fee
is less than the Service Fee actually paid the Contractor, to the Contractor shall pay back the difference to
The County.
Upon any termination of This Contract, the parties shall perform an annual adjustment in
accordance with this section, as if such termination were occurring at the end of a Fiscal Year.
All payments for annual adjustments shall be made within sixty (60) days after determination of
such annual adjustment.
Section 7.6 PAYMENTS TO THE CONTRACTOR. Payments to the Contractor pursuant to the
terms of this Contract shall be made as follows:
a. On or before the fifteenth (15th) day of each calendar month during the term of this
Contract, the Contractor shall render a bill to the County for the previous whole calendar
month payable to the Contractor for an amount equal to:
(1) an amount equal to one-twelfth (1/12) of the annual Service Fee determined as
provided in Section 7.3 for the then current Fiscal Year; plus
(2) an amount equal to the monthly Service Fee Surcharge as determined and
provided for in Section 7.3;
b. On or before the thirtieth (30th) day following the end of each Fiscal Year during the term
of this Contract, the Contractor shall render a bill to the County payable to the Contractor
for the annual adjustment as provided in Section 7.5. The bill shall include:
(1) the difference between the adjusted Service Fee due and the actual Service Fee
paid (which amount may be negative and payable by the Contractor to the
County);
(2) any amount due and not yet billed for excess tonnages processed; and
(3) the amount due for any adjustment permitted in Sections 7.7 through 7.11 (which
amount may be negative and payable by the Contractor to the County).
c. The Contractor shall include with such bills:
(1) a certification of performance of services provided based on the records which the
Contractor is required to maintain pursuant to Section 9.3, and
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(2) invoices for all items constituting Reimbursable Expenses as defined in Article
land established in Exhibit II of the Pricing Proposal and incurred by the
Contractor;
(3) a certification of the total monthly tons of MSW, and its moisture content, using a
procedure established by the Contractor and agreed to by the County which
includes a certified flow meter, daily Contractor grab samples and Certified Lab for
analysis of higher heating value content, resulting in the monthly tons of MSW
delivered by the County to the Contractor.
d. Should the Contractor and the County fail to agree to the amount of any payment due
pursuant to this Section 7.6, then the amount invoiced will be paid by the County in
accordance with this Section and the matter submitted to the Independent Third Party for
decision. Should the Independent Third Party find in favor of The County, then the County
shall be reimbursed for all monies due and interest thereon. Payments due the County
shall be made within sixty (60) days after such determination. Interest shall be as specified
in Section 11.19 and calculated from the date of receipt of payment by the Contractor to
the date of repayment by the Contractor to the County.
e. In consideration of the substantial amount of money which will become due and payable to
the Contractor upon submission of its monthly certification of performance, the County
shall pay the Contractor all amounts due within sixty (60) calendar days of receipt of each
bill. Payment received by the Contractor sixty (60) calendar days or more after the
County's receipt of the Contractors certification of performance shall be subject to interest
calculated from the sixtieth (60th) day to the date of payment. Should the Contractors
monthly statement show that the sum of the amounts due to the County exceed the
amounts due the Contractor for any given month, then the Contractor shall pay to the
County any amounts due within sixty (60) days after submission of its monthly certification
of performance. Interest shall be as specified in Section 11.19 and will be paid by the
Contractor calculated from the sixtieth (60th) day to the date of payment. In any case the
County shall pay the Contractor all undisputed amounts as per the payment terms under
this Section 7.6.
Section 7.7 ADJUSTMENT OF SERVICE FEE AND SERVICE FEE SURCHARGE.
a. Changes in the Facility. The Service Fee and the Service Fee Surcharge shall be adjusted
in an amount approved by the County and the Contractor for documented changes in
processing and disposal expenses due to changes in the Facility made during the
construction thereof at the request of the County or as result of Farce Majeure or due to
the changes in the Facility initiated during this Contract at the request of the County or due
to events of Force Majeure. all in accordance with Articles III. V and VII as follows:
(1) County requested changes which do not require the expenditure of funds and
which decrease the Service Fee and the Service Fee Surcharge shall be credited
to lower the succeeding Fiscal Years Service Fee.
(2) County requested changes which increase the Service Fee and the Service Fee
Surcharge shall be paid by the County and the subsequent Fiscal Years Service
Fee shall be adjusted accordingly.
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(3) Contractor requested changes approved by the County which increase the Service
Fee andlor the Service Fee Surcharge shall be paid by the County and the
subsequent Fiscal Years Service Fee shall be adjusted accordingly.
(4) Force Majeure changes which require adjustments to the Service Fee and the
Service Fee Surcharge shall be made pursuant to Section 3.6.
b. Reduction of Beneficial Material Reuse Services. The Guaranteed Processing Cost shall
be adjusted for any reduction in Beneficial Material Reuse Services caused or arising from
an event of Force Majeure or fault of the County in accordance with the procedure in
Section 7.10.
c. Facility Performance at Less Than Guaranteed Capacity. In the event the Contractor is
unable to make corrective measures within the three hundred sixty-five (365) days
provided in Section 3.9 then the Service Fee shall be reduced by the following:
(1) The Capital Cost component shall be reduced by a percent equal to the percent
difference between the Minimum Guaranteed Capacity and the actual capacity of
the Facility.
(2) The Guaranteed Processing Cost shall be reduced by a percent equal to the
percent difference between the Guaranteed Capacity and the actual capacity of
the Facility.
(3) Improvements by the Contractor thereafter to permit the Facility to operate at
increased capacity shall increase payment of the Capital Cost and Guaranteed
Processing Cost using the same percent for percent procedure as provided above,
in no case however, will the Contractors improvements increase the payments
beyond those to be paid had the Facility been capable of meeting the
Performance Guarantees. In no event shall an adjustment be made for an actual
capacity greater than the Minimum Guaranteed Capacity (i.e., for a ratio greater
than one).
d. Inflation or Deflation. The various components of the Guaranteed processing Cost
shall be adjusted for inflation or deflation at the end of each Fiscal Year as follows:
(1) Labor Component .the Labor Component of the Guaranteed Processing
Costs shall be adjusted by multiplying the Labor Component in Exhibit II of
the Pricing Proposal by the quantity LER, where LER is the Labor Escalation Rate
defined as the ratio of the most recently published United States Department of
Labor Statistics, Bureau of Labor Statistics, Consumer Price Index (All Items .All
Urban Consumers) for Honolulu for the midpoint of each year of operation (or
fraction thereof) to that of the date of acceptance of the Pricing Proposal.
(2) Materials Component .the Materials Component of the Guaranteed Processing
Costs shall be adjusted by multiplying the Materials Component in Exhibit II of the
Pricing Proposal by the quantity MER, where MER is the Material Escalation Rate
defined as the ratio of the most recently published United States Department of
Labor Statistics, Consumer Price Index (All Items-All Urban Consumers) for
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Honolulu for the midpoint of each year of operation (or fraction thereof) to that of
the date of acceptance of the Pricing Proposal.
(3) Rental Component .the Rentals Component of the Guaranteed Processing Costs
shall be adjusted by multiplying the rentals component in Exhibit II of the Pricing
Proposal by the quantity RER, where RER is the Rental Escalation Rate defined
as the ratio of the most recently published United States Department of Labor
Statistics, Bureau of Labor Statistics, Consumer Price Index (All Items -All Urban
Consumers) for Honolulu for the midpoint of each year of operation (or fraction
thereof) to that of the date of acceptance of the Pricing Proposal.
(4) Fuel Component .the Fuel Component of the Guaranteed Processing Costs shall
be adjusted by multiplying the fuel component in Exhibit II of the Pricing Proposal
by the quantity FER, where FER is the fuel Escalation Rate defined as the ratio of
the most recently published average posted diesel fuel cost by Chevron USA, Inc.,
and Hawaiian Independent Refinery, Inc., for the midpoint of each year of
operation (or fraction thereof) to that of the date of acceptance of the Pricing
Proposal.
(5) Others Component .the Others Component of the Guaranteed Processing Costs
shall be adjusted by multiplying the others component in Exhibit II of the Pricing
Proposal by the quantity OER, where OER is the Others Escalation Rate defined
as the ratio of the most recently published United States Department of Labor
Statistics, Bureau of Labor Statistics. Consumer Price Index (All Items .All Urban
Consumers) for Honolulu for the midpoint of each year of operation (or fraction
thereof) to that of the date of acceptance of the Pricing Proposal.
(6) Revenues .the Revenues portion of the Service Fee shall be adjusted to reflect
actual revenues from energy and/or recovered materials sales.
Section 7.8 DELETED.
Section 7.9 PAYMENT AND ADJUSTMENT FOR DIVERSION OF MATERIAL DUE TO
CONTRACTOR'S FAULT ANDIOR NEGLIGENCE. A ton of material shall be deemed to have been diverted
due to Contractors fault and/or negligence if the Contractor requests the County to stop delivery of MSW
that is available for delivery to the Facility, refuses to accept MSW being delivered to the Facility, or
subsequently removes MSW that had been accepted at the Facility, provided that MSW diverted during the
maintenance period of not more than twenty-one (21) consecutive days per Fiscal Year when the Facility is
allowed to be shutdown shall not be deemed diverted due to Contractors fault and/or negligence excluding
Contractor requests to stop deliveries permitted by the terms of this Contract.
The Contractor shall monitor and report to the County on a monthly basis the amount of MSW
required to be diverted, prior to processing, to a landfill or other disposal or any other reuse option in the
event the Facility is shutdown other than allowed for by this Contract. In such case the monthly billing of the
annual Service Fee shall be reduced by an amount equal to the MSW tons diverted times the Guaranteed
Processing Cost for MSW divided by the Minimum Guaranteed Capacity.
In the event of any dispute with respect to the designation of such maintenance schedules and/or
the wrongful diversion of material, the mailer shall be submitted tc the Independent Third Party for its
decision.
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Section 7.10 PAYMENTS AND ADJUSTMENT FOR SHUTDOWN OF THE FACILITY. OTHER
THAN CONTRACTOR'S FAULT AND/OR NEGLIGENCE. In the event the Facility is partially or completely
shutdown due to the fault of the County or an event of Force Majeure, the Contractor shall continue to
receive the Service Fee. The Contractor shall use all reasonable efforts to reduce its actual costs of
operating and/or maintaining the Facility and pass on the savings through a decrease in the Service Fee
resulting from reduction of the tonnage processed and/or adjustment of the Guaranteed Processing Cost
during the duration of such period.
Section 7.11 PAYMENTS OF PENALTIES. In the event the Facility is found to be in violation of
any federal, state, or local law, code, ordinance, regulation, or court order concerning the design,
construction, and operation of the Facility, and fines or penalties are assessed as a result thereof, such
fines or penalties shall be paid by the County when such violation is due to the fault of The County or due
to an event of Force Majeure and shall be paid by the Contractor when such violation is due to the fault
andlor negligence of the Contractor. The foregoing shall not preclude either party from contesting the
imposition of such fines and penalties to the extent permitted by law at its own expense and the other party
shall provide the contesting party with reasonable assistance.
ARTICLE VIII
CONFIDENTIALITY
Section 8.1 CONFIDENTIAL AND PROPRIETARY INFORMATION. The County acknowledges
7 that the Contractor has valuable confidential commercial and financial information, trade secrets or
proprietary data relating to the processing and marketing of MSW and Other Waste for beneficial reuse
("Confidential Information"); and that disclosure of such Confidential Information to the County or he
County's officers, employees and agents is solely for the purposes of facilitating the transactions and work
contemplated by this Contract, and is made solely under the terms and conditions of this Article VIII.
Section 8.2 IDENTIFICATION OF CONFIDENTIAL INFORMATION. The Contractor shall inform
the County of any Confidential Information contained in any documents submitted to the County by the
Contractor under this Contract or otherwise communicated to the County by the Contractor. The Contractor
shall mark any portions of such documents which contain Confidential information with an appropriate
legend such as "CONFIDENTIAL," "PROPRIETARY," or the like.
Section 8.3 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Except for such disclosures
as permitted under Section 8.4 or as required by law (after notice as provided in Section 8.5), no
Confidential Information provided by the Contractor shall be disclosed by the County or the County's
officers, employees or agents to any other person without the express written consent of the Contractor,
and no such Confidential Information shall be used by the County or its representatives for any purpose
other than such purposes as authorized under this Contract. The County and the County's officers,
employees and agents shall take all precautions necessary to preserve the confidentiality of such
Confidential Information and to protect it from disclosure to third parties, except as is required by law. The
County agrees that it will be responsible for any breach of this covenant by the County's officers,
employees and agents.
Section 8.4 PERMITTED DISCLOSURE. Confidential Information received by the County may be
disclosed to the County's officers, employees and agents only if and to the extent that access to such
Confidential Information is necessary in the performance by such person of their responsibilities with
respect to financing, implementing, administering or enforcing this Contract.
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Section 8.5 UNIFORM INFORMATION PRACTICES ACT REQUESTS: LEGAL DEMANDS. In the
event that the County or its representatives receive a request from any person under the Uniform
Information Practices Act, Chapter 92F, Hawaii Revised Statutes, or a legal demand from or authorized by
any Governmental Authority (including a demand by oral questions, interrogatories, requests for information
or documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential
Information, the County shall provide the Contractor with prompt written notice so that the Contractor may
take such legal action as it deems appropriate to dispute such request or demand and to protect the
Confidential Information from disclosure to a third party. Pending any such action to protect the Confidential
Information, the County shall take all reasonable steps to avoid prejudice to the Contractors rights and
efforts to protect such Confidential Information. In the event a protective order or other remedy is not
obtained, or that the Contractor waives compliance with the provisions of this Section 8.5, the County shall
furnish only that portion of the Confidential Information which the County is legally required to disclose,
Section 8.8 LIMITATION ON USE. Except as otherwise provided in this Contract, the County shall
not use, or allow any of the County's officers, employees and agents to use, any Confidential Information
for any purpose other than to monitor the Contractors performance of the Contractors obligations under this
Contract, or to finance, implement, administer and enforce this Contract.
ARTICLE IX
CONTRACT ADMINISTRATION
1 Section 9.1 CONTRACT REPRESENTATIVES. The County's representative in the administration
of this Contract shall be the Director of Environmental Management or designated representative
(hereinafter 'Contract Representative"). The Contractor's Representative in the administration of this
Contract shall be: Either party may change its representative in the administration of this Contract
upon five(5) days written notice to the other party to this Contract.
Section 9.2 SITE REPRESENTATIVES. The Contractor shall designate a Site representative,
headquartered in the County, who will be available and have authority to make normal operating decisions
for the Contractor. The County shall designate a representative with authority to act on behalf of the
County.
Section 9.3 RECORD KEEPING, REPORTING. AND COUNTY'S RIGHT TO EXAMINE
RECORDS. The Contractor shall maintain and keep proper books, records, and accounts in which
complete and correct entries shall be made of all dealings and transactions relating to the Facility to the
extent required to be maintained and kept under this Article. Such records shall be open to inspection by
the County excluding financial data relating to profits, tax returns, confidential documents and materials not
related to the services provided by the Contract. The Contractor shall keep the records covering the
operations of the Facility and provide reports as follows:
a. The Contractor shall maintain appropriate records pertaining to the delivery and
acceptance of MSW and Other Waste, their processing, and the production of Energy
and/or Recovered Materials. Weighing procedures and scale measuring and recording
devices shall be subject to reasonable approval of the County and shall meet, as a
minimum, the following requirements. Each vehicle shall be weighed upon entering and
before leaving the tipping and/or shipping area. Each transaction shall be electronically
recorded using a computer and software acceptable to the County and shall provide The
time of transaction, vehicle identification including, ownership, place of origin/destination,
vehicle license, vehicle type, gross weight, tare weight and net weight. The weight records
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' shall be retained for a minimum of two (2) years or for such periods as may be specified by
statutory or regulatory requirements, whichever is greater. Required records in this
category include but are not limited to itemized statements of:
(1) MSW delivered by the County and, if applicable, Other Wastes delivered by other
haulers to the Facility, and
(2) MSW rejected and/or diverted,
(3) Residue disposed of,
(4) Energy andlor Recovered Materials sold
Such records shall be submitted to the County on appropriate electronic media, clearly
identified with the period of operation covered.
b. On or before the fifteenth (15th) day following the end of each calendar month during the
term of this Contract, the Contractor shall submit to the County in hard copy and on
diskette in MS Word (current version) a report summarizing the operations and
performance of the Facility for each day during the previous month. Spreadsheets may be
in MS Excel (current version). The data included in such reports shall be sufficiently
detailed to facilitate analyses of the operation and performance of the Facility and to verify
that the Facility is operating in compliance with the requirements of this contract. The
report shall describe major items of operations for the previous month including, but not
limited to, a summary of:
(I) tonnages delivered, processed, rejected, diverted, and disposed of,
(2) quantities of energy and/or recovered materials produced, and shipped,
(3) scheduled and unscheduled downtime including a description of maintenance
activities during such periods,
(4) invoices to private haulers delivering Other Wastes,
(5) invoices to purchasers of Energy andlor Recovered Materials,
Section 9.4 COUNTY'S RIGHT TO AUDIT. The County shall have the right to audit the wage and
hour records of the Contractor relating to the Facility to confirm compliance with Section 103-55, Hawai i
Revised Statutes and shall submit a certificate of compliance annually prior to the start of a new Fiscal
Year. In addition, during the term of the Contract the County shall have the right to have an annual audit
performed at its expense by an independent certified public accountant of all books and records of the
Contractor relating to:
a. the matters described in this Section;
b. Reimbursable Expenses;
c. capital assets records; and
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d. such other mailers as agreed.
Such books and records shall be made available at the Facility during the Contractors normal
business hours for examinations by the County's representatives. The County shall give the Contractor five
(5) business days prior written notice of any such examination.
Section 9.5 OFFICE FOR COUNTY'S CONTRACT REPRESENTATIVE. At all times during the
term of this Contract, the Contractor shall provide and keep available at the Site an office space for the
County's Contract Representative and staff. The size of the County's Contract Representative's office shall
be a minimum of two hundred (200) square feet. The minimum office space required for staff shall consist
of: (1) One hundred (100) square feet for secretarial space; (2) One hundred (100) square feet of
equipment and storage; and (3) Two hundred (200) square feet of conference room. The Contractor, at its
expense, shall provide such office with furnishings similar to those provided by the Contractor to its most
senior representative and staff at the Site.
Section 9.6 WAGES AND HOURS. To the extent applicable, Contractor shall observe and comply
with all the provisions of Hawaii Revised Statutes relating to wages and hours of employees:
a. Wages and Hours. Contractor shall pay all of Contractors employees, and ensure that all
employees of Contractor's subcontractors are paid, the minimum basic wage rate in
conformance with applicable federal and state laws.
b. Minimum Wages. All applicable employees shall be paid wages and employed under
conditions in compliance with HRS 103-55, "Wages Hours And Working Conditions Of
Employees Of Contractors Supplying Services."
d. Maintain Pavroll Records. Payroll records for all employees working at the site of the work
shall be maintained by Contractor and its subcontractors, during the course of the work
and preserved for a period of three (3) years thereafter. The records shall contain the
name of each employee, the employee's correct classification, rate of pay, daily and
weekly numbers of hours worked, deductions made and actual wages paid. County shall
have the right to audit the wage and hour records of Contractor and subcontractors.
e. Inclusion in Subcontract. Contractor shall include this Section in every subcontract for work
under this Contract.
ARTICLE X
INSURANCE AND CONDEMNATION
Section 10.1 GENERAL PROVISIONS AS TO INSURANCE. At all times during the term of this
Contract, the Contractor shall, procure and maintain, through recognized, responsible insurers authorized
to do business in the State of Hawaii and selected at its sole discretion, the insurance as described in
Sections 10.2 through 10.6 and such additional insurance as the County may from time to time require, to
the extent commercially available. The County shall be named as additional insured on all policies other
than Workers Compensation Insurance and Comprehensive Property Insurance. On Comprehensive
Property Insurance the County shall be named as an additional loss payee.
Whenever a subcontractor is utilized, the Contractor shall either (I) procure and maintain or require
the subcontractor to procure and maintain during the period of this Contract, Comprehensive General
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Liability, Workers' Compensation and Motor Vehicle Liability insurance coverage subject to the same
coverage, extensions and limits specified herein, covering damage caused by actions of the subcontractor
or its employees or (2) in the case of small subcontractors self insure for the benefit of such small
subcontractor.
A copy of all certificates of insurance shall be furnished to the Finance Director on or before the
commercial operations date. Each policy or certificate shall contain an endorsement to the effect that the
insuring company will notify the Contractor and Finance Director at least thirty (30) days prior to the
effective date of any cancellation or change in the provisions of such policy. In the event notice is received
that an insurance policy will be canceled or that the provisions of an insurance policy will be changed to the
extent that such policy no longer meets the requirements specified herein, the Contractor shall procure and
maintain a replacement policy to provide continuous coverage.
If the Contractor fails to procure or to maintain any required insurance, the County, at its option and
after written notice to the Contractor and a failure of the Contractor to cure such omission within thirty (30)
days thereof, may procure such insurance and pay the premiums thereon. In such event the amount of the
premiums paid by the County to cover the period the Contractor does not have the required insurance
including any minimum charges and cancellation penalties shall be deducted from the Service Fee. If an
insurance policy is canceled due to no fault andlor negligence of the Contractor and another similar policy
is not commercially available, then the Contractors obligations to maintain said insurance shall be excused
upon written approval by the Finance Director, which approval shall not be unreasonably withheld.
The provisions of this Contract as to insurance required to be procured and maintained by the
Contractor shall not be construed as limiting and prohibiting the Contractor from obtaining any additional
insurance it may wish to carry at its own expense.
Section 10.2 COMPREHENSIVE PROPERTY INSURANCE. The Contractor shall procure and
maintain property insurance for the full then current replacement value of the Facility per occurcence
covering direct physical loss to the Facility during the term of this Contract. Such property insurance shall
be subject to the terms and conditions normally included in standard property policies and will provide
replacement cost coverage on both real and personal property at the Facility arising from the perils
normally included in such policies such as, but not limited to, the perils of fire, lightning, explosion,
windstorm, hail, collapse, riot, riot attending strike, civil commotion, aircraft, vehicles, smoke, vandalism and
malicious mischief, and flood.
The coverage may be arranged subject to reasonable deductibles not to exceed Five Hundred
Thousand Dollars ($500,000.00) per occurrence.
Section 10.3 COMPREHENSIVE GENERAL LIABILITY INSURANCE. The Contractor shall
procure and maintain personal injury and property damage insurance covering, but not limited to, products
andlor completed operations, independent contractors, personal injury, broad form property damage, and
contractual liability insurance as shall be reasonably available and adequate to insure the County and the
Contractor against risks and liability to which they may reasonably be, or become, subject as a result of
operation, construction or reconstruction of the Facility. Such insurance shall be maintained with limits of
not less than Five Million Dollars ($5,000,000) combined single limit. Such insurance shall include the
County as additional insured. Each such liability insurance policy shall be endorsed to indicate it is primary
insurance with respect to the interest of the additional insured and any insurance maintained by such
additional insured is excess and not contributory with this insurance. This coverage may be arranged with a
lower limit primary policy with excess or umbrella policies to provide the required Five Million Dollars
($5,000,000.00) minimum limit.
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PROTOTYPE OPERATIONS CONTRACT
Section 10.4 MOTOR VEHICLE LIABILITY INSURANCE. The Contractor shall procure and
maintain comprehensive motor vehicle liability insurance including non-owned and hired auto coverage for
limits of at least One Million Dollars ($1,000,000) combined single limit for personal injury and property
damage. Such insurance shall include the County as additional insured,
Section 10.5 WORKERS' COMPENSATION. The Contractor shall maintain the required workers'
compensation insurance for all of the employees who will be engaged in the operation of the Facility of the
project as set forth in Chapter 386, Workers' Compensation Law, HRS, as amended, and the Federal
Longshoremen and Harbor Workers' Compensation Act, and the Federal Maritime Employers Liability Law
(Jones Act). In case any part of such Contractors Contract is sublet, the Contractor shall require his
subcontractor to maintain such insurance for all the subcontractors employees who will be so engaged,
unless the tatter's employees are protected by the principal Contractors insurance. At its sole risk, the
Contractor may be self insured as provided under HawaPi law.
Section 10.6 PAYMENT OF PREMIUMS. The Contractor shall guarantee all premium(s) on all
insurance pursuant to this Article X for the first three (3) years of this Contract and such amount shall
constitute reimbursable expenses pursuant to Exhibit II of the pricing proposal. Thereafter the County and
the Contractor shall, by mutual agreement determine the insurance coverages considered to be proper and
prudent for this Contract in keeping with each party's initial risks as intended in this Contract, which
coverage shall not be less than the coverage required in the initial three (3) years-of this Contract, unless
approved by both parties hereto. It is provided that the determination of required insurance coverage shall
' not be to the benefit of either party but shall be to the benefit of both. When such agreement cannot be
reached, the matter shall be resolved by a third party who shall be a nationally recognized insurance
consulting firm mutually selected by the County and the Contractor in a manner similar to the selection of
the Independent Third Party as provided for in this Contract. Decisions of such third party shall be binding
on both the County and the Contractor.
After the initial three (3) years of this Contract, required insurance premiums shall constitute
reimbursable expenses to the Contractor. Premium increases after the first three (3) years which are due
to a lower deductible or deductibles other than those included in the Pricing Proposal, unless such lower or
other deductibles are selected by the County, or which are due to improper Facility design, construction or
operation caused by the Contractors fault and/or negligence shall not be included as reimbursable
expenses.
Section 10.7 RISK RETENTION. For the first three (3) years from the effective date of this Contract
as set forth in Section 4.1, the County shall not be responsible for losses due to risks retained through
deductibles in the policies required in This Article, except to the extent such claim is a result of County's
fault. Such losses shall be the sole responsibility of the Contractor for said three (3) year period. Thereafter,
the County, in consultation with the Contractor, shall select the levels of deductibles, and payment for
losses as a result of such deductibles shall be made a reimbursable expense, provided, however, if any
claim is solely the result of negligent acts of the Contractor, its agents or its employees, the County shall
not be required to make payment for any losses incurred. Notwithstanding anything contained in this
Section 10.7, the County shall be required to pay for the deductible amounts incurred solely the result of
the conduct of the County, its agents or its employees.
1 Section 10.8 DISPOSITION PROCEEDS OF INSURANCE: DAMAGES IN EXCESS OF
INSURANCE. The proceeds of any insurance received pursuant to policies required by Section 10.2 shall
be paid to Contractor and shall be applied to repair or replace the damages for which such proceeds are
awarded, provided, however, if the County and the Contractor agree not to repair or replace such damages
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i then the proceeds shall be used to offset payment of the Service Fee or in a manner otherwise agreed to
by the parties. The proceeds of any insurance received pursuant to policies required by Sections 10.3,10.4,
and 10.5 shall be applied to satisfy claims for which such proceeds are awarded.
The insurance coverages as provided in this article represent the kinds and amounts of insurance
coverage considered by the Contractor and the County in its best judgement to be proper and prudent for
this Contract. As provided for in Section 10.1, the Contractor, at its expense, may obtain any other
insurance coverages or increased coverage as the Contractor may require for its benefit in addition to
those specified in this Article X, For the initial three (3) years after the start of the Contract, the Contractor
shall be responsible for obtaining, maintaining, and collecting the minimum insurance as described in this
article and any other insurable risk at the levels of coverage specified or mutually agreed to by the County
and the Contractor. After the initial three (3) year period insurance coverages shall be determined in
accordance with Section 10.6.
Should any insurance be commercially available but not available to the Contractor due to the fault
and/or negligence of the Contractor, then the Contractor shall bear the cost of any damages which would
have been paid from insurance proceeds had the Contractor maintained such insurance.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 REPRESENTATION AND WARRANTIES OF CONTRACTOR The Contractor
represents and warrants as follows that:
a. It is a corporation, duly organized and existing under and by virtue of the laws of the state
of
b. It has full power and authority to do business in The State of Hawaii.
c. At all times during the Contract term, it will maintain its status under the laws of such state
or states subject to its right to merge or consolidate with one (1) or more other corporate
entities as contemplated by Section 11.7 and will maintain its authority to do business in
the State of Hawaii.
d. It has full power and authority to execute and deliver this Contract and to perform this
Contract in accordance with its terms.
e. Its officers who are here undersigned have been empowered by all necessary
authorizations and resolutions to execute this Contract on its behalf
f. It has duly authorized, executed, and delivered this Contract and the Contract therefore
constitutes a legal, valid, and binding obligation enforceable against it in accordance with
the terms (subject to applicable bankruptcy limitations).
g. Its execution and delivery of this Contract and its performance of its obligation to fulfill the
terms and conditions herein:
(1) do not conflict with, violate, or result in a breach of any constitution, law, or
governmental regulation applicable to it; and
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(2) do not conflict with, violate, or result in a breach or default of any term or condition
of any order, judgement or decree, or any agreement or instrument to which it is a
party or by which it or any of its properties or assets are bound.
h. No approval, authorization, order or consent of, or declaration, registration or filing with any
governmental authority is required for the valid execution and delivery of this Contract by it,
except such as have been duly obtained or made.
i. There is no action, suit or proceeding, at law or in equity, before or by any court or
governmental authority pending or, to the best of its knowledge, threatened against it,
which might materially adversely affect its performance of its obligations herein or which, in
any way, questions the validity, legality or enforceability of this Contract, or any other
agreement or instrument it has entered into in connection with this Contract.
j. Contractor has obtained or will obtain all government approvals required for the Contractor
to perform its obligations under this Contract.
Section 11.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY. The County
represents and warrants to the Contractor as follows that:
a. it is a municipal corporation duly organized and validly existing under the constitution and
laws of the State of Hawaii, with full legal right, power, and authority to enter into and
1 perform its obligations under this Contract.
b. It has been duly authorized to execute and deliver this Contract which thus constitutes a
legal, valid, and binding obligation, enforceable against it in accordance with its terms
(subject to applicable bankruptcy limitations).
c. Its execution and delivery of this Contract and its performance of its obligations to fulfill the
terms and conditions herein:
(1) do not conflict with, violate, or result in a breach of any constitution, law, or
governmental regulation applicable to it; and
(2) do not conflict with, violate, or result in a breach or default of any term or condition
of any order, judgement or decree, or any agreement or instrument to which it is a
party or by which it or any of its properties or assets are bound.
d. No approval, authorization, order or consent of or declaration, registration or filing with any
governmental authority and no referendum or vote is required for the valid execution and
delivery of this Contractor its performance of its obligations hereunder by it except such as
have been disclosed to the Contractor and have been duly obtained or made.
e. There is no action, suit, or proceeding, at law or in equity, before or by any court or
governmental authority, or proceeding for referendum or other voters' initiatives, pending
or, to the best of its knowledge, threatened against it, which might materially adversely
affect its performance of its obligations herein, which, in anyway, questions the validity,
legality, or enforceability of This Contract, or any other agreement or instrument it has
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' entered into in connection with this Contract, or which would materially adversely affect its
ability to perform its obligations hereunder.
f. County has obtained or will obtain all governmental approval required for County to
perform County's obligations under this Contract.
g. No condition exists that constitutes, or with the giving of notice or lapse of time or both
would constitute an event of default by County under any indenture, mortgage, deed of
trust, lease, conditional sales contract, load or credit arrangement or other material
agreement or instrument to which County is a party or by which County or any of its
properties may be bound, which individually or in the aggregate with all such events of
default could reasonably be expected to have a material adverse effect. County is not in
default with respect to any governmental approval which would have a material adverse
effect on the execution, delivery or enforceability of this Contract or County's performance
of its obligations hereunder.
h. The Site has been and is being operated and used in compliance with All Laws, including
all applicable environmental laws and no environmental condition exists at, on or under the
site which would give rise to liability under any environmental laws.
i. The information set forth in this Contract has been disclosed in writing by or on behalf of
the County to the Contractor in the Contract Documents and the transactions
contemplated thereby, and such information when taken as a whole does not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading; it being understood with respect to any projections contained in such
information, that such projections are based on good faith estimates and assumptions by
the County, and That projections as to future events are not to be viewed as fact, and that
actual results during the period covered by such projections may differ from projected
results; provided that the management of the County has no reason to believe that such
projections are materially false or incorrect,
j. The County is in compliance with ERISA, state public employee pension and retirement
laws, and the code, except for such failures to comply That, in the aggregate for all such
failures, could not reasonably be expected to have a material adverse effect on the
execution, delivery or enforceability of this contract or the County's performance of its
obligations hereunder.
Section 11.3 FURTHER ASSURANCES. Each party agrees to execute and deliver any instrument
and to perform any act that may be necessary or reasonably requested in order to give full effect to this
Contract.
Section 11.4 RELATIONSHIP OF THE PARTIES. Except as expressly provided herein, no party to
this Contract shall be responsible for the services provided or obligations assumed by any other party and
nothing in this Contract shall be deemed to make any party a partner, agent, or legal representative of any
other party or to create any fiduciary relationship between or among the parties.
Section 11.5 INDEMNITY.
a. Contractor shall defend, indemnify, and hold County Indemnified Parties harmless from
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and against any claims to the extent arising out of, resulting from, or related to, and any
losses proximately caused by, the negligent or willful acts or omissions of Contractor
Indemnified Parties with respect to the performance of Contractors obligations under this
Contract.
b. County shall defend, indemnify, and hold Contractor Indemnified Parties harmless from
and against any claims to the extent arising out of, resulting from, or related to and, any
losses proximately caused by, the negligent or willful acts or omissions of County
Indemnified Parties with respect to the performance of County's obligations under this
Contract.
c. Contractor shall defend, indemnify, and hold County Indemnified Parties harmless from
and against any claims to the extent arising out of, resulting from, or related to, and any
losses proximately caused by, the breach of any representations made by Contractor in
this Contract.
d. County shall defend, indemnify, and hold Contractor Indemnified Parties harmless from
and against any claims to the extent arising out of, resulting from, or related to, and any
losses proximately caused by, the breach of any representations made by County in this
Contract.
e. Contractor shall defend, indemnify, and hold County Indemnified Parties harmless from
and against any claims for infringement or misappropriation of intellectual property in
connection with the operation and maintenance of the Facility by Contractor.
f. Contractor shall not be obligated to defend, indemnify, or hold County Indemnified Parties
harmless from and against any claims to the extent arising out of, resulting from, or related
to, or any losses caused by, County Indemnified Parties' own negligent or willful acts or
omissions, and Contractor shall not be obligated to indemnify, defend or hold harmless
County Indemnified Parties for incidental, consequential, special, remote, indirect or
punitive damages.
g. County shall not be obligated to defend, indemnify, or hold Contractor Indemnified Parties
harmless from and against any claims to the extent arising out of, resulting from or related
to, or any losses caused by, Contractor Indemnified Parties' own negligent or willful acts or
omissions, and County shall not be obligated to indemnify, defend or hold harmless
Contractor Indemnified Parties for incidental, consequential, special, remote, indirect, or
punitive damages.
h. In case of joint or concurrent negligence on the part of County Indemnified Parties and
Contractor Indemnified Parties giving rise to claims against either or both, nothing shall
affect the rights of the County Indemnified Parties' or Contractor Indemnified Parties', if
any, to contribution from the other.
i. Subject to the provisions of this Section, County shall defend, indemnify, and hold
Contractor Indemnified Parties harmless from and against any claims or losses that arise
out of, or result from and are related to any environmental condition or any release or
threatened release of regulated substances on, at or from the She as of the date of this
Contract.
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Except to the extent that such environmental condition, release or violations of
environmental laws are caused by the negligent or willful acts or omissions of Contractor
Indemnified Parties.
j Subject to the provisions of this Section, Contractor shall defend, indemnify, and hold
County Indemnified Parties harmless from and against any claims or losses That arise out
of, or result from and are related to any environmental condition or any release or
threatened release of regulated substances on, at or from the Site during the term of this
Contract, except to the extent:
(1) the environmental condition, release or threatened release arises out of results
from, or is related to an environmental condition, release or threatened release
which preexisted or occurred prior to the Contract date;
(2) the environmental condition, release or threatened release arises out of, results
from, or is related to the negligent or willful acts or omissions of County
Indemnified Parties or third parties over whom the Contractor does not exercise
control.
k. The following procedures shall govern any claims for indemnification under this Section.
(1) Notice. The party claiming a right to indemnification shall promptly give the
indemnifying party notice of the incurring of any losses or any circumstances that
will likely result in a claim by it for indemnity pursuant to this Contract. The notice
shall describe with reasonable detail the nature of such losses or circumstances to
the extent known, and shall include copies of any written documentation relating to
the losses or circumstances.
(2) Defense. The indemnifying party shall promptly assume the defense of any such
matter. Upon assumption of such defense by the indemnifying party, the
indemnified party may participate in the defense at the indemnified party's sole
expense.
(3) Coordination and Control. Upon assuming the defense of any matter covered by
an indemnity, the indemnifying party shall keep the indemnified party reasonably
informed of the status of such mailer and shall have the right to compromise and
settle any such matter except to the extent that the compromise and settlement
obligates the indemnified party to make any payment, part with any property,
assume any obligation, perform any act, or forego any act, right, privilege or
opportunity, providing that the indemnifying party shall make no admission of
liability or fault on the part of the indemnified party without the indemnified partls
written permission. Upon the assumption of the defense of any matter covered by
an indemnity, the indemnified party shall not compromise and settle the matter
without the indemnifying party's written permission, which permission will not be
unreasonably withheld.
I. Contractor shall use reasonable efforts to obtain for the joint benefit of County and
Contractor, indemnifications and warranties from vendors, manufacturers, and suppliers of
machines, articles of manufacture, equipment, and materials furnished for construction,
operation, or maintenance of the Facility (including with respect to claims for infringement
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PROTOTYPE OPERATIONS CONTRACT
or misappropriation of intellectual property), to the extent that such indemnifications or
warranties are reasonably obtainable.
m. County officers, employees and agents shall not incur personal liability to Contractor for
reasonable actions taken in good faith in connection with this Contract. Contractor
Indemnified Parties shall not incur personal liability to County for reasonable actions taken
in good faith in connection with this Contract.
Section 11.6 ASSIGNMENT OF CONTRACT. The Contractor shall not attempt to assign or assign
this Contract without the prior written consent of the County which consent shall not be unreasonably
withheld and unless and until its assignee shall have agreed in writing to become liable for all of the
Contractor's obligations under this Contract. If the Contractor or any of its parent company(ies) shall
consolidate with or merge into another entity, this Contract shall be assigned to such resulting or surviving
entity in such consolidation or merger by operation of law. Further, if the Contractor or any of its parent
company(ies) shall transfer all or substantially all of its assets (including this Contract) to another entity, this
Contract may be assigned to such transferee entity. Such resulting or surviving or transferee entity shall
become liable or assume liability for all of the Contractor's obligations under this Contract.
Section 11.7 BINDING EFFECT. This Contract shall be binding on the County, the Contractor and
their respective successors and assigns.
Section 11.8 GOVERNING LAW AND JURISDICTION: NO SOVEREIGN IMMUNITY. This
Contract shall be governed by and construed in accordance with the laws of the State of Hawai i, The
Contractor hereby agrees to submit to service of process in and to the jurisdiction of the courts of the State
of Hawaii in connection with any claim or controversy arising out of the interpretation, application, or
enforcement of this Contract. The County to the extent permitted by law hereby irrevocably waives and
renounces any and all rights to sovereign immunity (or similar rights and defenses) it may have with respect
to and agrees not to raise sovereign immunity (or similar defense) as a defense to any claim, suit or
proceeding based on or arising out of this Contract, the transactions contemplated hereby; or a breach
hereof, brought against the County by or on behalf of the Contractor.
Section 11.9 WAIVER. Unless otherwise specifically provided by the terms of this Contract, no
delay in exercising or failure by either party to exercise any of its rights under this Contract-or resulting from
any breach of this Contract or from any failure to perform will impair or be construed to be a waiver of such
rights. Any waiver must be in writing and signed by the party granting such waiver. If any covenant or
agreement contained in this Contract is breached by any party and thereafter waived by any other party,
such waiver will be limited to the particular breach so waived and will not be deemed to waive any other
breach under this Contract.
Section 11.10 APPROVALS. CONSENTS, AND AGREEMENTS. Whenever the approval, consent,
or agreement of either the County or the Contractor is required or contemplated, such approval, consent or
agreement shall not be unreasonably withheld.
Section 11.11 ENTIRE AGREEMENT: AMENDMENTS. This Contract, including all exhibits and
addenda attached hereto, constitutes the entire understanding and agreement between the County and the
Contractor as to the subject matter hereof. There are no terms, obligations, covenants, or conditions other
than those contained herein. No modification or amendment of this Contract shall be valid and effective
unless evidenced by an agreement in writing.
Section 11.12 SEVERABILITY. In the event any covenant, condition, or provision of this Contract is
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1 held to be invalid or unenforceable by a final judgment of a court of competent jurisdiction, the invalidity or
unenforced ability thereof shall in noway affect any of the other covenants, conditions, or provisions hereof,
provided that such remaining covenants, conditions, and provisions can thereafter be applicable and
effective without material prejudice to either the County or the Contractor. This Contract is a separate
agreement from any other agreement between the parties and all duties and obligations vested in either
party hereunder shall not be dependent on performance under any other agreement.
Section 11.13 EFFECT OF ARTICLE AND SECTION HEADINGS AND TABLE OF CONTENTS.
The headings or titles of the several articles and sections herein, and any table of contents shall be solely
for convenience of reference and shall not affect the meaning of the construction, interpretation or effect of
this Contract.
Section 11.14 CONTRACT MAY BE EXECUTED IN COUNTERPARTS. This Contract may be
simultaneously executed in counterparts. Each such counterpart so executed shall be deemed to be an
original, and all such counterparts together shall constitute one and the same instrument.
Section 11.15 INDEPENDENT THIRD PARTY. To the extent permitted by law, and unless
otherwise specified in this Contract, any controversy arising under this Contract which the parties are
unable to resolve by mutual agreement, shall be submitted to the Independent Third Party in accordance
with the rules of resolution provided in Exhibit G. Any decision of the Independent Third Party with respect
to any matter that over the term of this Contract will involve Two Hundred and Fifty Thousand Dollars
($250,000) or less shall be binding and conclusive as to the mailers submitted and may be enforced in any
court of competent jurisdiction in the State of Hawai i. Any decision of the Independent Third Party with
respect to any matter which over the terms of the Contract will involve more than Two Hundred and Fifty
' Thousand Dollars ($250,000) may be submitted to any competent jurisdiction in the State of Hawai i and
the matter settled by jury trial.
The Independent Third Party shall be selected and resolve issues in accordance with the
procedures provided in Exhibit . The Independent Third Party may be relieved of his employment by
either the County or the Contractor, provided, however, during a pending decision, the Independent Third
Party shall not be relieved of his employment except by mutual agreement of the County and the
Contractor. If such an event occurs the County and the Contractor shall immediately select a new
Independent Third Party utilizing Exhibit -
The services of the Independent Third Party will be on a retainer basis in amount not to exceed
Twenty-Five Thousand Dollars ($25,000) per year for the first two (2) years of retainage and Ten Thousand
Dollars ($10,000) per year thereafter with the fee to be paid equally by the County and the Contractor.
Additional costs incurred in excess of the retainer fee resulting from items submitted for decision shall be
paid by the party damaged by the final decision. Where the decision is not clearly in the favor of either party
then the percentage of such additional costs shall be paid by the County-and the Contractor as decided by
the Independent Third Party.
Section 11.16 AGREEMENT AS TO TAX EXEMPTIONS. GRANTS AND OTHER BENEFITS. In
the event the Facility or any part thereof may become eligible for any exemptions from any taxes or to
receive any grants, public or private, or other benefits, after receipt of the New Pricing Proposal, the parties
shall take whatever reasonable steps are required to take advantage of any such exemptions or to receive
any such grants or benefits. Where such tax exemptions, grants, and benefits are provided to the Facility at
no cost to the Contractor all monies derived therefrom shall be paid to the County. Where such benefits
require the expenditure of funds, the County and the Contractor shall mutually agree as to the extent of
equity participation by the Contractor and monies derived therefrom shall be paid to the County and the
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Contractor in direct proportion to their expenditure of funds.
Section 11.17 NONDISCRIMINATION IN EMPLOYMENT. The Contractor shall comply with all
laws and regulations which prohibit discrimination against applicants for employment or employees and will
take affirmative action to ensure compliance. Such action shall be applicable to, but not be limited, to the
following: recruitment and recruitment advertising; hiring; promotion; upgrading; transfer; selection for
training, including apprenticeship; demotion; layoff; and termination. The Contractor will post in
conspicuous places, available to employees and applicants for employment, notices setting forth the
provisions of this nondiscrimination clause.
Section 11.18 ADVERTISEMENTS. The Contractor in all solicitations or advertisements for
employees, placed by on behalf of the Contractor, shall state that all qualified applicants will receive
consideration for employment in accordance with all laws and regulations which prohibit discrimination-and
without regard to such factors as, but not limited to, age, race, color, religion, sex, sexual preferences,
national origin, or disabilities.
Section 11.19 INTEREST. In the event any uncontested payment to be made hereunder is not paid
when due or if any payment to be made hereunder otherwise is to bear interest, such payments shall be
made pursuant to Hawaii Revised Statutes § 103.10 as amended and the interest provisions set forth
therein shall apply to payments due from both parties hereto.
Section 11.20 PAYMENTS CONTINGENT UPON OTHER GOVERNMENTAL ACTION. Where the
time of payment is contingent upon receipt of federal/state funds, or federallstate approval, interest shall
not begin to accrue upon any unpaid invoice until the thirtieth day following receipt by the County of the
Contractor's statement or the thirtieth day following receipt of the federallstate funds andlor approval,
whichever occurs later, and shall end as of the date of the payment.
Section 11.21 NOTICES. All notices, approvals, acceptances, consents, and the like required or
contemplated by this Contract shall be in writing and shall be deemed to have been given when delivered
personally or by messenger or received by the addressee by registered or certified first class mail, return
receipt requested, with sufficient postage affixed, addressed as follows:
a. If to the County:
County of Hawaii
Department of Environmental Management, Solid Waste Division
25 Aupuni Street, Room 210
Hilo, HI 96720
Attention: Director
b. If to the Contractor
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1 IN WITNESS WHEREOF, the parties have executed this Contract as of the date first above written
COUNTY OF HAWAI' I
HARRY KIM, Mayor
CONTRACTOR
By:
Title:
FederallD No.
APPROVED AS TO CONTENT:
BARBARA BELL
Director
Department of Environmental Management
APPROVED AS TO FORM AND LEGALITY:
Deputy Corporation Counsel
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APPENDIX D
EXHIBITS
MUNICIPAL SOLID WASTE REDUCTION FACILITY
FOR THE
COUNTY OF HAWAII
LIST OF EXHIBIT
EXHIBIT A COUNTY OF HAWAII COUNCIL RESOLUTION 218 04
DRAFT 2
EXHIBIT B WASTE GENERATION ESTIMATES TABLE 2.6 FROM
FINAL EIS
EXHIBIT C DRAFT EAST HAWAII REGIONAL SORT STATION
OPERATIONS PLAN
EXHIBIT D LIST OF RESPONDERS TO REQUEST FOR
INFORMATION
EXHIBIT E CHARACTERISTICS AND GUARANTEED QUANTITIES
OF MUNICIPAL SOLID WASTE
EXHIBIT F PERFORMANCE GUARANTEES
EXHIBIT G SELECTION OF AND RESOLUTION OF CONFLICTS BY
INDEPENDENT THIRD PARTY
EXHIBIT H GUARANTY AGREEMENT
EXHIBITA
COUNTY COUNCIL RESOLUTION N0.218 04
7
7
• COUNTY OF HAWAII STATE OF HAWAII
RESOLUTION NO. 218 04
(Draft 2)
A RESOLUTION THAT SUPPORTS SOLID WASTE LANDFILL DNERSION THROUGH WASTE
REDUCTION TECHNOLOGY WRT WITH PROCUREMENT CRITERIA THAT MATCHES HAWAII
COUNTY POLICIES, NEEDS AND WASTE STREAM, AND DELINEATES NEXT ACTIONS.
WHEREAS, the Hawaii County Council, pwsuant to Chapter 342G, Hawaii Revised Statutes (HRS),
adopted the Hawaii County Integrated Solid Waste Management Plan (ISWMP) by Resolution No. 291-94
on October 5, 1994; and
WHEREAS, the Hawaii County Council, pwsuant to Chapter 342G, Hawaii Revised Statutes (HRS),
adopted the Update to the Integrated Solid Waste Management Plan by Resolution No.238-02, on November
20, 2002; and
WHEREAS, on May 5, 2004, the Hawaii County Council adopted Resolution No.180-04, which
supports expediting the process to bring online a WRT; and
WHEREAS, the Council is cognizant that time is of the essence in the County's ongoing effort to
maximize the life of its two landfills and, in supporting the ISWMP policy objective, that the County work
towards a suitable waste reduction technology (WRT); and
WHEREAS, the Council recognizes that in order to expedite the Request For Proposal (RFP) for a WRT,
procurement criteria that consistently matches County policies, needs and waste stream must be established
first; and
WHEREAS, dwing the Parks and Environmental Committee meeting on July 22, 2004, Comm 684.1,
which outlined the initial assessment of findings gathered from the Request For Information (RFI) process,
was discussed at length; and
WHEREAS, in light of the information gathered at the Parks and Environmental Management
Committee meeting, including the analysis and input voluntazily provided by consultant Ted Vorfeld,
President of Hualalal Engineering, the following procwement criteria aze deemed essential and need to be
incorporated into the RFP:
• Project financing by the vendor with a statement in writing from the vendor's financial institution
confirming the vendor's ability to finance the project based on review of the proposal submitted to the
County.
• Eazly construction and operation of processing facility capable of managing residual East Hawaii
waste (County Sort Station design and Environmental Impact Statement available for vendor use).
• At least one full-scale commercial operation must be operating. No experimental technologies will
be accepted.
Vendor to handle all Municipa: ..d Waste (MSW) that comes to the N facility. wfiether or not it
is the vendor's preferred composition of waste.
• Redundancy in operation, or storage options, such that waste is always accepted.
• A maximum fee from the County to the vendor of $100/ton based on a 20-year operations contract to
include tip fees and hauling of any residual, as well as items a vendor prefers to exclude from its
process.
• Facility to be transferred to County ownership after 20 years.
• Operations are intended to remain with the private sector for the life of the facility.
• Demonstration of experience of vendor's team to handle all permitting issues in a timely fashion.
• East Hawaii waste stream is the primary feedstock.
• County guazantees a minimum of 875 tons/week (an average of 125 tons/day).
• If land other than Government-owned is desired, cost of acquisition, roads and utilities to be borne by
the vendor.
• If land suggested by County between existing South Hilo landfill and Hilo Transfer Station is desired.
County will facilitate acquisition, roads and utilities to vendor's fence line.
• Vendor needs to visit Hawaii County operations and must demonstrate understanding of unique
issues before submitting proposal.
• Vendor needs to demonstrate end mazkets and a firm price commitment (in the form of a letter of
commitment) by a purchaser for the facility's primary product where those revenues exceed 20% of
the projected product revenue.
• A performance bond with a minimum of $5 million to cover County identified damages due to
vendor defaults.
• A bid bond of $50,000.
• Diversion from landfills, exclusive of County recycling programs, shall be at a minimum rate of 75%;
and
WHEREAS, the timeline for implementing and processing the RFP will be as follows:
• The RFP will be completed and published island-wide, statewide, and posted on appropriate industry
related websites by Octobet 31, 2004.
• Vendors will have three (3) months to prepare proposals and no proposals will be accepted after
January 3l, 2005.
• The RFP evaluation committee, which shall be composed pursuant to Resolution No. 238-02, will
recommend at least one but no more than two vendors to the County Council by April 30, 2005.
• The RFP evaluation committee's recommendation(s) shall be discussed in Executive Session by the
County Council and a contract with the selected WRT vendor will be negotiated and the contract
execution date shall be no later than July 31, 2005; and
WHEREAS, in tandem with the procurement of a WRT, the County will be proceeding with the actions
delineated below:
• Issue an Invitation for Bids (IFB) for construction of roads, utilities, community recycling and
recycling processing azeas in the vicinity of the present Hilo Transfer Station.
• Issue Requests for Proposals and/or Invitation for Bids for:
1. Bottle bill implementation.
2. Recycling at transfer stations island-wide based on 5-year transfer station enhancement plan.
3. Greenwaste collections at selected transfer stations.
4. White and bulky goods pickup at selected transfer stations.
5. Diversion of reusable items.
6. Diversion of construction and demolition debris.
7. Develop and implement a community process to inform and educate the community about various
WRTs.
NOW, THEREFORE, BE IT RES ,'ED by the Council of the County of ~ai`i that the RFP process
for a WRT will be based on and guided by the procurement criteria and timeline enumerated in this
resolution.
BE IT FURTHER RESOLVED that the Cotmty, in tandem with the WRT process, will proceed with the
lineated actions cited above.
BE IT FURTHER RESOLVED that copies of this resolution be transmitted to the Honorable Harry Kim,
Mayor, County of Hawaii; Barbara Bell, Director, Department of Environmental Management, County of
Hawaii and the Hawaii County Environmental Management Commission.
Dated at Hilo Hawaii, this 4 th day of August 2004.
ODUCE ,
j CI ME E , C OF HAWAII COUNCIL MEMBE - LINTY OF HAWAII
COUNTY COUNCIL ROLL CALL VOTE
County of Hawaii AYES NOES ABS EX
Hilo, Hawaii ARAKAKI
CHUNG X
I hereky certify that the foregoing RESOLUTION was by ELARIONOFF X
The vote indicated to the right hereof adopted by the COUNCIL of the
County ofHawai`ion__~ugStSt 4 2004 HOLSCHUH X
JACOBSON X
REYNOLDS yt
ATTEST: SAFARIK X
TULANG X
TYLER
8 0 1 0
Reference: C-711.1
COUNTY CLlR CHAIRMAN&PRESIDINGOFFICER NEOSOLUTION 218 O'4 (Draft 2)
EXHIBIT B
WASTE GENERATION, DIVERSION AND DISPOSAL
QUANTITY ESTIMATES
TABLE 2.6 FROM FINAL EIS
Final Environmental Impact Statement
~ ~ Construction and Operation of the
East Hawaii Regional Sort Station
~
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-
.
~ 7
' Prepared by
The County of Hawaii
Department of Environmental Management
25 Aupuni Street, #210
Hilo, Hawaii 96720
February 2004
~I This document is prepazed pursuant to the Hawaii Environmental Protection Ac[,
Chapter 343, Hawaii Revised Statutes (HRS), and
~ ~ Titlel 1, Chapter 200, Hawaii Department of Health Administrative Rules (HAR).
I~
County OjHawai'i Final EIS
Table 2.6: Waste Generation Diversion and Dis osal uanti Estimates
Disposal Disposal
~ Resident DeFacto "Waste Qty After Qty Fast Qty West
Year Po ulation s Po ulation = Generateds Diversion .Hawaii Hawai i
tpY tPy ~ tp7 tPY
2000 149 261 165 187 186,909 162,611 69,923 92,688
2001 151,709 167,896 189,975 165,278 71,070 94,208
2002 154 794 171 311 193,838 168,639 72,515 96,124
2003 157,326 174,113 197,009 167,458 72,007 95,451
2004 159,900 176,962 200,232 168,195 72,324 95,871
2005 162 516 179 857 203,508 168,912 72,632 96,280
2006 165,175 182,799 206,837 165,470 71,152 94,318
2007 167 877 185 790 210,221 157,666 67,796 89,870
2008 170,624 188 829 213,660 153,835 66,149 67,686
2009 173 415 191 919 217,156 149,838 64,430 85,407
2010 176,252 195,058 220,709 145,668 62,637 83,031
2011 179,136 198,250 224,319 141,321 60,768 80,553
2012 182 066 201 493 227,989 136,794 58,821 77,972
2013 185,045 204,789 231,719 132,080 56,794 75,286
2014 188,072 208140 235,510 129,531 55,698 73,832
1 2015 191,149 211,545 239,363 131,650 56,609 75,040
2016 194,276 215 006 243,279 133,803 57,535 76,268
2017 197,455 218,523 247,259 135,992 58,477 77,516
2018 200,685 222,098 251,304 138,217 59,433 78,784
2019 203 968 225 732 255,415 140,479 60,406 80,073
2020 207,305 229,425 259,594 142,777 61,394 81,383
2021 210 697 233 178 263,841 145,113 62,398 82,714
2022 214,144 236,993 268,157 147,487 63,419 84,067
2023 217,647 240,870 272,545 149,899 64,457 85,443
2024 221 208 244 811 277,003 152,352 65,511 86,841
2025 224,827 248,816 281,535 154,844 66,583" 88,261
2026 228505 252,886 286,141 157,378 67,672 89,705
2027 232,243 257,024 290,822 159,952 68,779 91,173
2028 236,043 261229 295,580 162,569 69,905 92,664
2029 239,904 265,502 300,416 165,229 71,048 94,180
2030 243,829 269,846 305,331 167,932 72,211 95,721
r,
2031 247 818 274 261 310,326 170,679 73,392 97,287
s 2032 251 873 278,747 315,403 173,472 74,593 98,879
2033 255 993 283 308 320,563 176,310 75,813 100,496 ,
~ 2034 260,181 287,943 325,807 179,194 77,053 102,141
2035 264,438 292,653 331,137 182,126 78,314 103,812
~y 15
County OjHawai'i
2036 268,764 297 441 336,555 185,105 79,595 105,510
• 2037 273,161 302,307 342,061 188,133 80,897 107,236
2038 277,630 307,253 347,657 191,211 82,221 108,990
2039 282,172 312 280 353,345 194,340 83,566 110,774
2040 286,788 317,389 359,125 197,519 84,933 112,586
2041 291,480 322,581 365,001 200,750 86,323 114,428
2042 296,249 327 859 370,972 204,035 87,735 116,300
2043 301,096 333,222 377,041 207,373 89,170 118,202
2044 306,021 338,674 383,210 210,765 90,629 120,136
2045 311,028 344,215 389,479 214,213 92,112 122,102
2046 316 116 349 846 395,851 217,718 93,619 124,099
2047 321,288 355,569 402,327 221,280 95,150 126,129
2048 326544 361387 408,909 224,900 96,707 128,193
2049 331,887 367 299 415,599 228,579 98,289 130,290
2050 337 316 373 308 422,398 232,319 99,897 132,422
2051 342 835 379 415 429,308 236,120 101,531 134,588
2052 348,443 385,622 436,332 239,982 103,192 136,790
2053 354144 391931 443,470 243,909 104,881 139,028
2054 359,938 398,343 450,725 247,899 106,597 141,302
2055 365,826 404,860 458,099 251,955 108,340 143,614
Table Notes:
1. Resident population data are from Population and Economic Projections jar the State ofNmvai'i to 3025
.for the State ojHmvai'i to 2020. Research and Economic Analysis Division
(DEBDT, February 1997).
Data are projected in 5-year intervals with growth rates specified for each intervnl.
Annual data are interpolated
from the growth projections and growth rate.
2. Dejacto Population averaged 10.67% higher thnn resident population for
the period 1990 and 2000. DeFacto population is assumed to be 10.67°/a
greater Ihan resident population in the model presented above.
3. Waste generated in the State ofHmvai'i is 6.216s per person per day (County ofHawai'i, 2003).
4. The existing waste diversion from recycling, reuse and illegal dumping is approximately 1 S%.
Proposed waste manngement strategies will increase island-wide dn~ersion [0 45°/a through
recycling and resource recovery methods by 2015 (see nnnual diversion rates listed below).
5. South Hilo Landfill disposed an overage oj43% ofthe total waste stream disposed in Hawaii County
between 1996 and 2001.
6. Pu'uanahulu Landfill disposed an average of 57/ ojthe fatal waste steam disposed in Hmvai'i County
between 1996 and 2001.
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EXHIBIT C
EAST HAWAII REGIONAL SORT STATION
DRAFT OPERATIONS PLAN
RevisrA 1029/04
EAST HAWAII REGIONAL SORT STATION
DRAFT OPERATIONS PLAN
TABLE OF CONTENTS
1.0 Introduction
1.1 Purpose
1.2 Objective
2.0 Site Information
2.1 Site Location
2.2 Site Description
2.3 Design Criteria Memorandum . .
2.4 Storm Water
2.5 Sanitary Sewer
2.6 Water Supply
3.0 Site Personnel
1 4.0 Daily Operations/Design Features
4.1 Waste and Traffic Types and Volumes
4.2 Operating Hours .
4.3 Traffic Control/Patterns
4.4 Acceptable Wastes
4.5 Unacceptable Wastes -Screening Program
4.6 Waste Handling
4.7 Waste Hauling and Disposal
4.8 Recyclables Receiving and Disposal
4.9 Signage
5.0 Facility Maintenance
5.1 Litter Control
5.2 Dust and Odor Control
5.3 Noise Control
5.4 Vector Control
6.0 Spill Prevention Procedures
1 7.0 Facility Inspections and Monitoring
DRAFT £HRSS OPERATIONS PLAN
Revised 10129104
8.0 Health and Safety _
9.0 Record Keeping _
9.1 Scalehouse _
9.2 Records Maintained . .
9.3 Reporting Procedures
10.0 Appendices
A. Site Map .
B. Design Criteria Memorandum
C. Monthly Facility Inspection Checklist . .
D. Facility Maintenance Checklist . . .
E. Hazardous Waste Exclusion Plan . . .
F. Key Staff and Agency Phone Lists .
i
t
DRAFT EHRSS OPERATIONS PL.~'Q
Revised 10!29!04
1.Olntroduction
1.1 Purpose
The purpose of the Operations Plan (Plan) is to comply with the requirements set forth in
Section 11-58.1-31(b)(3) of the Hawaii Administrative Rules (HAR) and to describe the
design that went into the facility, and the procedures for operating, maintaining, and
monitoring the East Hawaii Regional Sort Station (EHRSS). Phase I of the EHRSS is
comprised of recycling and materials (resource) recovery facilities. Phase II of the
EHRSS is proposed to include expansion of the resource recovery facilities and
construction of a scalehouse and a municipal solid waste (MSW) handling facility or
transfer station (Reload Facility). Phase I is proposed to be constructed during the Spring
of 2005. Phase II is proposed to be constructed during the Summer of 2005. The County
of Hawai' i (County) is currently in the process of procuring services for construction and
operation of a Waste Reduction Technology Facility to be located in East Hawaii
county.
1.2 Objective
The EHRSS is being constructed to provide astate-of--the-art recycling center, resource
recovery area and reuse park, and to provide a reload facility for handling MSW to be
transported to a County designated solid waste management facility (South Hilo Sanitary
LandfilllWest Hawai i Sanitary Landfill or other appropriately permitted facility).
' The objective of the Plan is to describe how solid waste and recyclables are recovered
and processed at the EHRSS, and how the EHRSS will be operated in accordance with
applicable County, State, and Federal requirements.
2.0 Site Information
2.1 Site Location
The EHRSS is located in East Hawaii County on County-owned land immediately
northwest of the existing South Hilo Sanitary Landfill. Specifically, the land available
consists of parcel lot numbers 150, 162, 167, 168, and 11, totaling 72.7 square acres.
However, for ease of development, proximity to the existing site access road, and to
allow existing transfer station, scrap metal, and green waste operations to continue during
construction, Phase I of the EHRSS is limited to include only parcel lot numbers 167 and
a portion of 150. The area to be developed for Phase I of the EHRSS is approximately 10
acres. Phase II of the EHRSS includes expansion of the resource recovery area and
construction of a scalehouse and MSW handling or Reload facility.
2.2 Site Description
The site is owned by the County of Hawaii and development on this site is consistent
with the County's Update To The Integrated Solid Waste Management Plan, dated
7 December 31, 2002.
DRAP7 ERRSS OPERATIONS PL.41J
Revised 10/29104
The site consists of a heavy growth of trees and vegetation in some areas, and other areas
have been cleazed. The south end of the developed site (parcel lot 167) has been part of
an active quarry operation within the last 10 years. The site is mostly underlain with
undisturbed rock which is relatively soft for the upper two plus feet, and gets harder as
the depth increases below grade level.
The specific area where the EHRSS is to be developed consists of cleared land and the
area where the quazry operations had occurred. No evidence of environmental
contamination has been detected within the proposed EHRSS Phase I/II areas.
A site plan is located in Appendix A for reference.
The EHRSS development for the first phase consists of the following features:
Access roadway off the existing site access roadway located to the west of the
development.
Anew recycling center consisting of retaining walls, maneuvering areas for the self-
haul vehicles, and areas for the drop boxes and/or tote boxes to be placed for loading.
The unloading areas and drop or tote boxes aze under a canopy for weather
protection. This recycling center is capable of receiving in excess of 70 vehicles per
hour and also includes an area, which can be utilized when the State of Hawaii
"Bottle Bill" is enacted.
Also located on the site are azeas for a re-use park and special solid waste events, as
well as areas for future recyclables processing areas to be developed by private
recycling vendors under agreements with the County.
All storage and processing areas, roadways and parking areas are to be paved with all
weather materials, such as crushed miscellaneous baserock, asphalt concrete
pavement or reinforced concrete pavement. These areas may include approved
recycled-content construction materials.
The EHRSS development for the second phase consists of the following features:
¦ Anew 20,000sf. Reload Facility where County transfer station trailers, commercial
and residential-hauling vehicles unload and where solid wastes are reloaded into
Reload Facility solid waste transfer trailers. This building is completely enclosed and
is capable of receiving and processing up to 26 commercial vehicles per hour (VPH),
and up to 216VPH of public self-haul vehicles on weekdays and 288VPH on
weekends.
¦ Transfer trailer loading bays (2 total) are located at the north end of the Reload
Facility. Retaining walls and ramps are constructed to allow up to 2 transfer trailers to
access the loading bays. The solid waste is pushed directly from the tipping floor of
DRAFT EHRSS OPERATIONS PL4S
Re~sea lo.~z9~oa
the Reload Facility into the top of the transfer trailers. Each transfer trailer should be
capable of transferring up to 25 tons.
• Anew staff facility is located adjacent to the reload building. This staff facility
includes washrooms, showers and lockers, one office, a lunchroom, and a mechanical
room. An electrical room and transformer pad is located adjacent to the staff
facilities.
¦ Anew scalehouse incorporating one entrance and one exit scale. The scale house is
approximately 200 squaze feet and has a cover over the scalehouse and scales for
weather protection during operations.
2.3 Design Criteria Memorandum
In the planning and design phase of the EHRSS project, a Design Criteria Memorandum
(DCM) was prepared. This DCM was prepared to provide the data and criteria for the
designs, and to be a tool for the engineers and county through design and operations.
Additionally, the DCM contains information regarding origin, composition, and expected
volume of solid waste to be handled at the EHRSS.
A copy of this DCM is included in Appendix B as a supplement to the Operations Plan.
1 2.4 Storm Water System
All storm water will be managed such that no storm water drains to adjacent properties.
Consequently, all storm water will be collected and drained to on-site detention ponds.
2.5 Sanitary Sewer
All sanitary waste from washrooms, showers, etc., plus any wash water which has come
in contact with solid wastes will be collected and treated on-site with septic tanks and
drain field in compliance with all State Depazment of Health (DOH) regulations. This
involves drains down in the transfer trailer load-out bays to collect the wastewater and
route them to the septic tank and drain field. Due to elevation differences, and a desire to
reduce the requirement for pumping, more than one septic tank and drain field has been
designed on the site.
2.6 Water Supply
Water is available from the County of Hawaii, Department of the Water Supply. An
existing 12inch-diameter water main runs near Leilani Street, which borders the existing
roadway to the EHRSS site. A new water line is proposed to be connected to the existing
line and routed along the existing roadway to the EHRSS site. The water will be utilized
for sanitary use, washdown, fire hydrants, and landscape irrigation.
DRAFT EHRSS OPiR.4TiDNS PLAN
Revised 10!29!04
3.0 Site Personnel r
This section describes the staff functions involved in managing and operating the
EHRSS. Job descriptions, titles, and actual numbers of personnel are subject to change,
however, the facility will maintain a sufficient number and type of staff to efficiently
manage and operate the facility at all times. Table 1 presents a breakdown of the
identified positions, the number required on a daily basis, and their basic responsibilities.
Table 1 -Facility Personnel
Position No. Read Responsibilities
Per Dav
Site Manager I Overall responsibility for personnel,
(Reload Facility) operations and regulatory
compliance.
Scale Attendant 1 Collects payment requirements from
(Scalehouse) commercial vehicles, directs traffic
to Reload Facility, provides site
information as requested, and
maintains data as necessary for
reporting purposes.
Public Kiosk Attendant 1 Directs self-haul public vehicles to
(Recycling Center) proper iocations for unloading
wastes and recyclables, provides
information to public.
Equipment Operator 2 Operates and maintains reload
(Reload Facility) facility equipment*, screens wastes
for limited manual sorting, provides
proper floor management of wastes
and recyclable materials to be sorted,
stockpiled, and loaded into transfer
trailers and temporary storage bins
(recyclables). Also transfers
materials within EJ~RS.
Laborer/Spotter 2 Assists public in unloading area,
(Reload Facility) directs traffic, checks loads, and
provides limited manual sorting
of recyclables from the wastes.
Re
DRAFT EHRSS OPERATIONS PLAN
Revised 10@9/04
1
Laborer/Spotter 2 Assist public on unload, directs
(Recycling Center) traffic, and coordinates
removal of recyclables to areas
for further processing.
Long-Haul Drivers 6 Operates the transfer trailer/tractor
(Reload Facility) from the Reload Facility to a County
designated solid waste management
facility.
Laborer/Spotter 1 Assists public on where and what to
(Resource Recovery Area) unload, directs traffic, and
coordinates removal & processing.
*Note -Types of Equipment are outlined in Section 4.7
DRArT EHRSS OPER.4TI0*iS PLAN
Revised 10!29'04
4.0 Daily Operations/Design Features
4.1 Waste and Traffic Types and Volumes
The following waste types will be received at the reload facility.
• Household wastes are collected at the existing transfer stations and delivered to the
Reload Facility in transfer trailers which are equipped with a hydraulically operated
gate on the top through which the wastes are loaded, and an hydraulically operated
ram which pushes/discharges the wastes from the rear of the transfer trailer.
• Commercial wastes consisting of food wastes from commercial facilities, paper
products, ferrous products, containers, wood and miscellaneous green wastes, and
other general wastes collected from commercial facilities. Commercial wastes are
transported to the Reload Facility by commercial haulers.
• Self-haul general public: The general public will deliver household/residential solid
wastes to the reload facility, source-separated recyclables to the Recycling Center,
and scrap metal, wood and green wastes to the Resource Recovery processing areas.
• Construction and demolition debris from commercial haulers and general contractors
will not be accepted at the Reload Facility. These materials are accepted at the West
Hawaii Sanitary Landfill and may be accepted in the future at the EHRSS Resource
Recovery Area under a separate operating permit.
Source-separated recyclables and materials that will be accepted at the Recycling Center
include the following:
• ONP (old newsprint)
• OCC (old corrugated containers)
• Mixed paper
• Ferrous containers
• Aluminum containers
• Glass
• White goods
• Used motor oil
• Tires
• Plastics (specific types for which markets exist)
The Reload Facility has been designed to receive and transfer up to 300TPD. Based on
data collected in 2002 and 2003, the following are waste and vehicle volumes to be
expected at the Reload Facility when operations begin.
• Commercial Wastes C
• Packer trucks - } 95 vehicles per day
DRAFT EHRSS OPFRATIOK~S PL-W
Revisal 1029/04
• Drop box vehicles - } 140 tons per day
1 • Large private trucks - }
• Residential transfer trailers } 9 trailers per day
• From existing transfer stations } 95 tons per day
When the new Reload Facility is placed into operation, the existing Hilo Transfer Station
will cease operation and all self-haul public vehicles will be routed to the EHRSS. The
traffic and waste volume, based in 2003 counts, will be as follows:
33 tons per day
• 1482 vehicles per day
It should be noted that the vehicle and waste volumes have historically been significantly
higher on Mondays at the existing Hilo Transfer Station. Base on the 2003 counts, these
numbers are:
• 42 tons per day
• 2450 vehicles per day
When the Reload Facility begins operations, vehicle counts will fluctuate based on days
of the week and months of the year. However, the amount of wastes in the different
vehicle types should remain reasonably consistent. Based on the past data, the average
load in each of the types of vehicles should be as follows:
• Commercial vehicles -These types of vehicles will have the largest range, and can
vary from 1 ton up to 8 tons per vehicle. For estimating purposes, the overall average
will be about 1.5 to 2.Stons per vehicle.
• Transfer trailers from existing transfer stations -These trailers have a capacity of 10+
tons per trailer.
Self-haul public vehicles -The weight of waste per vehicle will vary based on the
day of the week. However, the average should be about 451bs per vehicle with highs
of up to 70-801bs per vehicle per day on weekends.
4.2 Operating Hours
The EHRSS will be open 7 days per week from 7:00 a.m. to 5:00 p.m. The EHRSS will
be closed on certain holidays per year. At present, these days are New Years Day, July
4's, Thanksgiving, and Christmas. The closure days may very based on County or State
observed holidays. The scalehouse will be staffed with a County employee during the
hours of operation indicated above.
4.3 Traffic Control/Patterns
The traffic patterns for each type of vehicle will be different. All traffic will enter and
exit the site from the gated entrance roadway. Once on the site, the patterns will vary
r)R.AFT EHRSS OPF.RATIOVS PL:~IN
Revised 10.'29!04
based on the type of vehicle (i.e. County transfer station trailer, commercial hauler,
residential hauler) and types of materials transported (i.e. solid waste, recyclables).
• Commercial vehicles -These vehicles will proceed to the scalehouse and inbound
scale for weighing. After weighing, the vehicle is directed to the Reload Facility. At
the Reload Facility, the commercial vehicle maneuvers and reverses into the building
through doorways on the west side of the building (see Site Plan). The actual
doorway and location within the building to unload their wastes will be directed by
either the laborer/spotter or equipment operator inside the building. After unloading,
the vehicle will be directed to the scalehouse and exit scale for weigh out. After
weigh out, the vehicle exits the site. If tare weights are already recorded for the
commercial vehicle, then it may be allowed to bypass the exit scale.
• Transfer trailers from existing transfer stations -The pattern of these vehicles will be
the same as the commercial vehicles. The tare weights of these vehicles should be
recorded, therefore, in most cases; they will be able to bypass the exit scale.
• Self-haul public vehicles -These vehicles will proceed to the scalehouse area where
directions will be provided from a public kiosk. The public will be questioned about
the contents of their load and then directed to proceed to the Recycling Center,
Resource Recovery Area or the Reload Facility or to a combination of these facilities
if their load contains both waste and source-separated recyclables.
If they are directed to the Recycling Center, then the signage and/or spotter at the
center will direct the public as to which container(s) to unload their recyclables. If the
vehicle contains only recyclables, the vehicle can directly exit the site after unloading
bypassing the exit scale. However, if there are wastes in the vehicle, the spotter can
direct the public to unload their wastes into temporary storage containers at the
Recycling Center, or the vehicle may be directed over to the Reload Facility to unload
their wastes. The amount of waste and how it is separated will normally dictate where
the public is told to unload.
If they aze directed to the Reload Facility the vehicle will maneuver and reverse into
the building through doorways on the east wall. During peak arrival periods, the
public could also enter the building through doorways on the south wall. Incoming
traffic will be directed by either the laborer/spotter or equipment operator inside the
building. After unloading, the vehicle will bypass the exit scale and exit the site.
• Reload Facility solid waste transfer trailers removing wastes -The empty transfer
trailers will enter the site, bypass the scalehouse and proceed directly to the Reload
Facility's top load area via a separate roadway. At the top-load area, the trailer will
maneuver and reverse into position under one of the two- (2) available top-load bays.
When in position, the equipment operator in the Reload Facility will load wastes
through the top of the trailer. When the equipment operator communicates to the
transfer trailer operator that the trailer is full, the trailer operator will pull the trailer
forward to a location where the trailer will be secured for transport. The transfer
DRAFT EHRSS OPERATIONS PLAN
Revised 10/29/04
trailer will proceed to a scale £or weighing. If the weights are within the highway
limits of 80,000lbs GV W, then the transfer trailer can directly exit the site and
proceed to the County's designated solid waste management facility. If the 80,000lbs
GVW is exceeded, then the transfer trailer will return to the Reload Facility to unload
wastes, re-weigh, and then exit the site.
4.4 Acceptable Wastes
The EHRSS will accept all municipal solid wastes, industrial wastes and other non-
hazardous, non-liquid wastes, which can be accepted for disposal at the appropriate solid
waste management facility designated by the County. The acceptable wastes, including
recyclables, are generally listed in Section 4.1. As noted previously, only household
waste and commercial waste shall be accepted at the Reload Facility.
4.5 Unacceptable Wastes -Screening Program
Materials that are prohibited due to restrictions in County, State, or Federal laws,
regulations or permits are not knowingly accepted at the EHRSS.
All incoming loads will be screened for unacceptable waste at the Reload Facility. If
observed prior to unloading, the generator will be instructed not to unload the waste. If
observed after unloading, the waste will be segregated and the generator (if positively
identified) shall be contacted and requested to remove the wastes. Special wastes that are
considered unacceptable include:
• Medical Wastes or Infectious Wastes
• Asbestos Containing Materials (ACM)
• Household hazardous wastes (IIIIW)
• Animals (Live or Dead), Animal Carcasses, Fish Wastes, and Offal
• Petroleum Products, including fuel oil, grease, oil based paint and solvents
• Liquid Waste
• Whole Tires
• Lead-Acid Batteries
• Wastes generated from manufacturing, industrial, or agricultural processes
• Construction and Demolition Wastes
• Wastes generated from Land Clearing (i.e. tree stumps/roots, rocks, etc...)
• Radioactive Wastes
A copy of the EHRSS Hazardous Waste Exclusion Plan is included in Appendix E.
4.6 Waste Handling
As stated in Section 4.3, the laborer/spotters or the equipment operators will direct both
the County transfer station trailers, commercial and self-haul public vehicles on where to
unload their wastes on the Reload Facility tipping floor.
The following equipment may be utilized within the Reload Facility and Sort Station for
movement of wastes.
DRArT EHRSS OPERATIONS P1..4N
Revised 10~29~04
• Rubber-tired wheel front-end loader -utilized to relocate wastes on the tipping floor
into the top of the Reload Facility solid waste transfer trailers.
• Rubber-track hydraulic excavator -utilized to recover recyclables from the tip floor
wastes.
• "Bob-cat" front end loader -which is a smaller rubber-tired wheel loader -utilized
for a variety of uses from waste/recyclables handling to relocation of temporary
storage bins and totes.
• Forklift -utilized to relocate temporary storage bins and totes within the EHRRS.
Commercial Wastes
These wastes will include the wastes from commercial haulers, such as packer and drop
box vehicles.
The wastes will be unloaded onto the Reload Facility tipping floor for visual inspection.
The laborer/spotter and/or equipment operator will remove identified prohibited materials
and bulk recyclables from the tipping floor to an area where prohibited materials and bulk
recyclables can be managed appropriately. The residual solid waste shall be loaded into
the top of a Reload Facility solid waste transfer trailer. As experience is gained through
daily operations, the sorters and operators will be able to identify the "rich" loads more
accurately. By "rich" loads, we mean loads that have a reasonable amount of recyclables
that can be sorted out.
There will be temporary storage bins and/totes on the tipping floor, which are properly
labeled for placement of recyclables. Reload Facility materials handling equipment (refer
to Section 4.6) will be utilized to handle the wastes/recyclables.
The rubber-tired wheel loader will relocate wastes from the tipping floor into the top of
the Reload Facility solid waste transfer trailers. The operator of the loader will be
expected to maximize the loads into the transfer trailer without overloading the trailer
weight. By developing proper tipping floor management, that is, determining which
wastes should be loaded to fill a trailer, it should be expected that waste loads of 19 tons
to 23 tons could be expected.
Through experience gained in daily operations, the operators will be able to maximize
these loads. The equipment operator on the wheel loader will be the person to determine
when the transfer trailer appears to be near maximum capacity.
Self-haul Public Wastes
Portable curbs or pylons shall be utilized to demarcate the limit of access into the Reload
Facility for public vehicles. In general, the public vehicles should not be allowed to enter
the buildings more than 10-20 feet. Typically, the public will be directed to unload
DRAFT EHRSS OPERATIONS PLAN
Revised 10'29104
through 3-4 of the doorways for a period of time, then move them over to another 3-4
doorways when the wastes begin to "pile-up". The wheel loader will typically remove the
wastes from an area while the public is unloading onto the tipping floor in another azea.
The laborer/spotter should be able to identify and remove recyclables from the public
delivered waste because the volumes of waste are much lower (only 30-45TPD).
Once again, the laborer/spotters will put the recyclables into bin or totes sitting on the
tipping floor. The remaining wastes will then be placed into storage at a push wall, or
moved directly for placement into the top of a trailer tractor.
4.7 Waste Hauling and Disposal
Specially designed solid waste transfer trailers will be utilized to transport the residual
solid wastes from the Reload Facility to a County designated solid waste management
facility.
The empty Reload Facility solid waste transfer trailers will enter the site and proceed
down the transfer trailer roadway prior to the scales (see Site Plan) to the Reload
Facility's lower load-out area. Then, if a load out bay is not occupied, the trailer will
reverse into one of the two load-out bays. After the transfer trailer operator is notified that
his trailer is full, he will pull the trailer forward to a point where the transfer trailer can be
secured for transport. After trailer has been secured, the transfer trailer proceeds to the
scale for confirmation of total gross vehicle weight (GVW). For the County of Hawaii,
the maximum GVW is 80,000lbs on the highways.
The scheduling and staging of the Reload Facility solid waste transfer trailers for hauling
to the County designated solid waste management facility will be determined based on
the availability of permitted solid waste management facilities within the County.
Initially, it is proposed that all residual waste be transported to the South Hilo Sanitary
Landfill for legal disposal. Once the South Hilo Sanitary Landfill reaches final capacity,
residual waste will be transported to the West Hawaii Sanitary Landfill for legal
disposal. In accordance with the County's Update to the Integrated Solid Waste
Management Plan (dated December 31, 2002), it is anticipated that transport of residual
wastes to the West Hawaii Sanitary Landfill will cease after a permitted Waste
Reduction Technology Facility has initiated full time operations.
4.8 Recyclables Receiving and Disposal
The self-haul public vehicles bringing source-separated recyclables to the EHRSS will be
directed at the scalehouse and/or kiosk to proceed to the Recycling Center. At the
Recycling Center, the public will unload their recyclables into properly identified bins
and boxes. As stated earlier, there may also be some identified temporary storage bins at
the Recycling Center where the public can unload their solid wastes.
DRAFT EHRSS OPF,R.4TION5 PLA'~
Revised 10/29/04
When the recycling bins aze full, they will be removed from the site for fixrther
processing, or delivered over to the Resource Recovery Area.
It is expected that in some cases the self-haul public vehicles may be instructed to go
directly to the Resource Recovery Area if it is determined that their recyclables should
not be "double-handled" through the Recycling Center. The Site Plan identifies a location
within the EHRSS for white goods, construction/demolition debris (Phase II), and
traditional recyclable materials.
The Site Plan clearly identifies the Resource Recovery Area as the area to the west of the
Reload Facility and the transfer trailer roadway. This Resource Recovery Area will be
operated by private vendors under agreements with the County.
4.9 Signage
All appropriate signs are posted at the facility. These signs shall be maintained, and
revised if necessary to identify changes in operations or regulations. Signs include:
• Facility entrance sign (which displays the facility owner and/or operator, hours of
operation, emergency contact phone number, and a list of prohibited wastes)
• Directional signage for types of vehicles and areas to unload
• Speed limit signs
• Stop signs
• Disposal rates for commercial vehicles
• Bin Designation
Additional signage maybe needed as required by Local, State, or Federal regulations.
Directional azrows are also painted on the roadway surfaces to control traffic patterns.
ADA handicap parking signage is also included in the pazking areas.
5.0 Facility Maintenance
Facility maintenance is critical to the success of the EFIRSS and is conducted on a regular
basis as outlined in the Monthly Facility Inspection Checklist and the Facility
.Maintenance Checklist included in Appendix C and D respectively.
5.1 Litter Control
Litter is controlled by enclosing the Reload Facility's tipping floor and the top-load
transfer pits. There are two (2) other important types of controls that will be implemented
reduce litter:
Loads to the site should be covered.
• Site personnel will remove litter from the site, and vicinity on a daily basis.
DR.4FI' EHRSS OPER.4TI0\~S PL.4ti
Revised 10,29!04
5.2 Dust and Odor Control
Dust and odor is controlled by sweeping and cleaning the facility on a regular basis and
as needed. Odors can be further minimized by limiting the length of time that putrescible
wastes are on the tipping floor. The floor will be cleaned of wastes every day.
5.3 Noise Control
Noise is controlled by containing tipping activities inside the Reload Facility building.
5.4 Vector Control
Pests are controlled by cleaning the facility on a regular basis, and by limiting the amount
of time that putrescible wastes are stored on site.
A licensed commercial pest control company or residential use pesticides will be used as
needed to control pests.
6.0 Spill Prevention Procedures
Potential sources of leaks and spills at the facility include vehicles, equipment, and
hauler-generated wastes. Prevention activities include regular inspection and maintenance
programs for all Operator-owned or operated equipment. The Operator shall maintain
spill response supplies such as absorbent materials on-hand so that small spills and leaks
can be cleaned up as they occur. In the event of a spill involving significant risks to
human health or the environment, the Operator will contact the appropriate emergency
response personnel for immediate assistance.
Spill Prevention/ All Operator personnel who respond to a
Response Training spill involving significant risks to human health or the environment
shall be trained in initial spill response procedures, including
emergency notifications, location and use of spill response
equipment, and initial containment measures to prevent the spilled
material from leaving the area.
The Operator personnel may ONLY respond to incidental
spills (i.e. small quantities of suspected hazardous substances that
can be absorbed, or otherwise controlled at the time of the release
by employees in the immediate spill area).
Hazard Evaluation Potential hazards are evaluated based on the nature of the spilled
material, the size of the spill, and whether or not spilled material
could enter the environment.
DRAFC EHRSS OPER.AT1pNS P1.Aly
Revised ]0@9/03
Spill Potential Table The following materials have the potential to require emergency
spill response:
Material Location Maximum
tZuanti
Automotive Fluids Sort Station 20 al
Oil/AFT Sort Station 20ga1
Waste Antifreeze Sort Station 10ga1
Diesel Sort Station 50ga1
Used OiI Sort Station 10ga1
Paint Sort Station 5 al
Solvents Sort Station 5 al
AcidsrAlkaline Substances Sort Station 5 al
Pestiades Sort Station 5 gal
Spill Containment Spill containment supplies will be maintained as follows:
Material Location Quanti Ap rox.
Floor D Sort Station 80 lbs.
Spill Kits Sort Station One
Emergency In the event of a spill, employees are to notify their supervisors
Notifications immediately. The supervisor will assess the situation, and
coordinate additional response and notification activities as
required.
Depending on the location and outcome of a spill, different
notifications are required.
All spills should be reported to the Site Manager. He will
determine which additional notifications.are required.
DRAFT' EHRSS OPF.R.ATiONS PLAT`
Revised lOR9/04
IF the s ill involves... THEN, notif as follows...
Onsite or offsite release, smaller `Inform Environmental Health
than the reportable quantity, & Safety (EHS) Manager
which is cleaned up immediately
and does NOT enter the
environment.
Any release, greater than State Dept. of Health
reportable quantity (RO).
Note that the RO varies for
different materials, and changes
as the law changes. The EHS
Manager can help determine the
RQ of spilled materials.
Any release, which enters a State Dept. of Health
drain and could to to the septic
system.
Transportation-related incident State Dept. of Health
Whenever possible, the Environmental Health & Safety Manager should be
contacted before reporting to agencies. Do not delay reporting to agencies if
there is an immediate hazard or threat of release.
Immediate notifications aze to be made by telephone within eight hours of
discovering the spill.
Deadlines for written follow-up reports vary depending on the-type of incident
and the agency involved. The Environmental Health & Safety Manager should
review all written reports prior to submission to the appropriate agency.
7.0 Facility Inspection and Monitoring
The County Solid Waste Division Chief or designee inspects the facility on a monthly
basis. Any items that need attention are noted on the facility inspection checklist. A
copy of the checklist is included in
Appendix C.
The inspection checklists are retained for a minimum of three years. Records aze
maintained onsite and shall be available for inspection during normal business hours.
NDPES Stormwater Pollution Prevention monitoring activities records shall be
maintained onsite and shall be available for inspection during normal business hours.
DA.AFT EHRSS OPERATIONS PLAN
Revised 10.'29'04
8.0 Health and Safety
Employees are trained in safe work habits, hazard recognition, and hazard avoidance.
Regular safety meetings and facility inspections are used to maintain a degree of safety
awareness. Emergency communications are available via telephone and/or two-way
radio. A first aid kit and an Emergency skin and eye wash station shall be maintained in
the Reload Facility.
The following minimum training topics will be covered on an annual basis as well as
other training topics required by County, State, and Federal standards:
] . Fire prevention /Fire extinguisher use
2. First Aid
3. Communication
4. Hazardous Waste Screening
5. Emergency Action Plan /Emergency Notification
6. Spill Emergency
7. Reporting Hazards
Smoking shall be prohibited at the EHRSS except within designated areas.
9.0 Record Keeping
9.1 Scalehouse
Daily operating records will be kept in the scalehouse and maintained at County solid
waste offices or storage facilities when appropriate.
9.2 Records Maintained
The following records will be maintained:
• Commercial vehicles loaded weights and tare weights to the Reload Facility.
• Recyclable Materials recovered from the Reload Facility.
• Weights (loaded and tare) for transfer trailers from County transfer stations and
temporary solid waste storage bins from the EHRSS Recycling Center.
• Weights (loaded and tare) for transfer trailers removing wastes from EHRSS to a
County designated solid waste management facility.
• Weights (loaded and tare) for recyclable materials bins/trailers from County transfer
stations.
• Weights (loaded and tare) for recyclable materials bins/trailers at the EHRSS
Resource Recovery Area and Recycling Center.
• Inspection checklists.
• Associated Operating Permits and Regulatory Orders
Additional records maybe maintained as operations experience is obtained.
DRAFT EHRSS OPERATIONS PLAN
Revised 1029/04
9.3 Reporting Procedures
The Operator may be required to submit some of the reports.
WHEN - As required by the Solid Waste Management Permit.
WHO TO SUBMIT TO -State of Hawaii Department of Health
WHAT TO SUBMIT - To be determined.
10.0 Appendices
Appendix A -Site Map
Appendix B -Design Criteria Memorandum
Appendix C -Monthly Facility Inspection List
Appendix D -Facility Maintenance Checklist
Appendix E -Hazardous Waste Exclusion Plan
Appendix F -Key Staff and Agency Phone Lists
DRAFT' EHRSS OPER.4TI0NS PLAN
Revised 10Y29/04
Appendix A t
Site Plan
DRAFT EHRSS OPER.4TI0\S PL.1\
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Revised 10.79/04
Appendix B
Design Criteria Memorandum
DRAFC EHRSS pPERATIONS PLAN
DESIGN CRITERIA
MEMORANDUM
EAST HAWAII REGIONAL SORT
STATION
Prepared for:
County of Hawaii
Department of Environmental Management
Hilo, Hawaii
October 2003
Prepared by:
111 SW Columbia, Suite 900
Portland, OR 97201
25695248.50000
TABLE OF CONTENTS
1.0 Introduction ...............................................................................................................1
1.1 General ..........................................................................................................1
1.2 Project Goal 2
2.0 Waste Types and Operations Criteria 3
2.1 Waste Types 3
2.2 Operations Criteria 3
2.3 Waste and Traffic Volumes 4
2.4 On Site Traffic Analysis and Station Capacity 6
3.0 Specific Design Criteria 10
3.1 Architectural ................................................................................................10
3.2 Civil 11
3.3 Structural .....................................................................................................I1
3.4 Mechanical ..................................................................................................13
3.5 Electrical ......................................................................................................14
4.0 General Material Specifications 16
4. I Basic Materials of Construction 16
4.2 Concrete 17
4.3 Reinforcing Steel 17
4.4 Structural and Miscellaneous Steel 17
5.0 Communications 18
5.1 County of Hawaii, Department of Environmental Management 18
5.2 URS Project Team 18
5.3 Additional Contact Information for the County and the Utility Companies... 19
*7~C c~sotia e~am~son sr~.~.owencmcdnmemc oam].e;c iouzaoa PegC TOGI
SECTIONONE introduction
1.1 GENERAL
The existing Hilo landfill is scheduled to close by the end of 2004. At present, the Hilo landfill
receives residential wastes from 12 existing transfer stations as well as wastes from commercial
haulers from the Hilo and East County azea. One of these transfer stations is located within one
(1) mile of the Hilo landfill and, in fact, is the largest transfer station receiving over 33 tons per
day (TPD).
With the closure of the Hilo landfill, it will be necessary to construct a new transfer station near
the landfill where all wastes can be received and transferred to long-haul transfer trailers for
transport to the Puuanahulu landfill located on the west side of the island of Hawaii,
approximately 78 miles from the Hilo landfill.
Since a new facility is required, the County of Hawaii, Department of Environmental
Management is desirous of constructing a facility which has the following features:
• Reload facility
Administration building
• Staff facilities for station operators
1 • Vehicle maintenance facility
• Resource park where the general public can deliver their source-separated recyclables, and an
area where the general public can deliver and take home recyclable or used materials for their
own use. It is the intent to also utilize the Resource Park as a spot where private recyclers
can receive and process (on or off site) their specific types of recyclable materials such as
ferrous metals, tires, aluminum cans, plastics and paper products (OCC, ONP and mixed
papers).
• Area for receipt of construction and demolition debris.
• Area for receiving, processing and composting of wood and green wastes.
A site for the new Station has been identified by the County. The site is located in close
proximity to the Hilo landfill, and adjacent to the existing Hilo Transfer Station. There is more
than enough area for the new Station; however, for topographic and cost purposes, the layouts
for the new facilities should be limited to lOf acres.
This Design Criteria Memorandum (DCM) has been prepared to provide the data and criteria
necessary for the planning and design of the new Regional Sort Station. This DCM is to be a
tool for the engineers and the County as we proceed through the project.
**tiC G~SOhCWaste\SORSTq~DesignCntariaMertioJd03.tloc iocaon Page 1
SECTfONONE ~ntrouuctluo
1.2 PROJECT GOAL
The specific goal of this project is to plan, design and construct a new solid waste facility that
will be an important element in the solid waste management plan for the County of Hawaii on
the east side of the island. The facility shall provide a safe and efficient location for general
public and commercial vehicle unloading; effective on-site traffic patterns; reliable transfer
operations; and a facility where County recycling quantities can be increased.
*fst C:~SOIItlWasta\SOrtSTPIDesignCrkenaMmnOd03.tlw iorzeroa Paget
SECTIONTWO Waste Types and Operations Criteria
2.1 WASTE TYPES
The following wastes and recyclables will be received at the new facility:
• Residential wastes from the eleven (11) remaining transfer stations. Wastes are collected at
the stations and delivered to the new station in existing transfer trailers which have an
hydraulically operated gate on the top through which the wastes are loaded, and an
hydraulically operated ram which pushes/discharges the wastes from the trailer. Capacity of
trailers are an average of 10-12 tons.
• Commercial wastes consisting of food wastes from commercial facilities, paper products,
ferrous products, containers, wood and green wastes, and other general wastes collected from
commercial and retail facilities. Commercial vehicles can range in capacity from 1 ton up to
8 tons. The average would be about 3 tons.
• Self-haul general public: With the closure of the existing Hilo Transfer Station, the general
public will deliver residential wastes to the reload facility; source-separated recyclables to the
Resource Park, and wood and green wastes to the processing area.
• Construction and demolition debris from commercial haulers and general contractors.
• Recyclable materials to be accepted at the Resource Park:
¦ ONP (old newsprint)
¦ OCC (old corrugated containers)
¦ Mixed paper
¦ No. 2 plastics -milk jugs only
¦ Ferrous containers
¦ Aluminum containers
¦ Glass
¦ Scrap iron
¦ White goods
¦ Used motor oil
• Tires
2.2 OPERATIONS CRITERIA
• Hours of Operation: 7:00 a.m. - 5:00 p.m.
• Days of operation per week: 7 days
Transfer trailers to west side Puuanahulu landfill: 45-ft. to 48-ft. in length with "walking
floors"
• Distance to landfill: 78 miles one way
Round trip time for transfer trailers: Sf hrs. - 2 trips per day for one tractor and trailer
• Highway Load Limit: 80,000 Ib. GVW
* C'\$olid Waste+sM STA\Desi9nGrkenaMerr Oc+03 tloc +orzeroa Page 3
SECTIONTWO Waste Types and Operations Criteri a
2.3 WASTE AND TRAFFIC VOLUMES
2.3.1 Existing Data From County
Table 1: Waste and Traffic Volumes -Hilo Landfill
Year Waste Generated (tons) Total (TPD)
Res. Comm. Res. ' Comm. '
1999 30,984 30,450 86 117
2000 32,864 34,803 91 134
2001 33;505 35,472 93 136
2002 34,473 36,103 96 139
TPD and VPD based on 360 days/year
a> TPD and VPD based on 260 dayslyear
Table 2: March 2003 Data
Vehicle No. Tons TPD VPD
Commercial 1;867 2,808 140 (1) 93
Residential (transfer trailers) 282 2,813 94 (2) 9
TPD and VPD based on 20 day/month
a> TPD and VPD based on 30 day/month
2.3.2 Breakdown of Wastes From Existing Transfer Stations to Hilo Landfill
Table 3: Site Characteristics for Existing Transfer Stations
Transfer Station District Approx. Parcel No. of `01/'02 Distance to Distance to Hilo
Name Population Size Chutes Tonnage Puuanahulu Sort Station
Served (Acres) (TPD) Landfill
East Hawau
Keaau Puna 11,700 19.54 2 18.52 83.1 9
Pahoa Puna 9,400 3.77 2 12.21 94.4 20
Kalapana Puna 1.200 13.2 1 2.21 105.4 31
Volcano Puna 2,000 2.19 1 4.02 103.2 21
Glenwood Puna 4,300 1.97 1 6.41 96.1 30
Hilo S. Hilo 42,000 72.7 4 33.16 77.5 2
Honomu S. Hilo 3 400 0.84 1 4.67 63.7 21
Papaikou S. Hilo 5,800 0.57 1 7.81 69.6 ] 5
Pahala Ka'u 1.700 0.75 1 3.34 90.6 51
Total: 92.35
**fl~ C'\SoIiEWas[eISOrtSTA\OesignGntenaMemoOCl03.tloc ~azaoa Page4
SECTIONTWO Waste iylpes and Operations Criteria
2.3.3 Summary and Design Volumes
The figures in Table 1 for the year 2002 agree, in general, with the March 2003 figures.
Therefore, for design purposes, the following traffic volumes should be utilized.
Commercial VPD 93 + 10% 102 VPD
Residential (transfer trailers) VPD 9 + 10% 10 VPD
Weight/commercial vehicle, use 2,8081 1,867 = 1.5 tons
Weight/residential vehicle, use 2,813 / 28 = 10 tons
2.3.4 Additional Public Vehicle Wastes and Traffic Volumes to New Reload Facility
With the opening of the new Regional Sort Station, the existing Hilo Transfer Station will be
closed and all of the general public coming to this facility will now come to the new Regional
Sort Station. Table 4 provides a summary of the vehicle counts taken from May 2 through
May 16, 2003.
Table 4: Vehicle Traffic Count Taken at Hilo Transfer Station May 2-16, 2003
Date # Vehicles Tonnage: Tonnage: Tonnage: Tonnage: Daily Total: Avg Lbs. /
Hilo 1 Hilo 2 Hilo 3 Hilo 4 Tons Vehicle
May 2, Fri. 1,215 8.60 8.03 9.51 9.04 3.18 57.91
May 3, Sat. 1,310 8.68 7.48 9.45 5.16 30.77 46.98
May 4, Sun. 1,306 11.38 11.90 11.05 8.44 41.96 64.26
May 5, Mon. 2,583 12.25 12.59 9.49 7.78 42.11 32.61
May 6, Tue. 1,550 11.14 9.27 7.52 27.93 36.04
May 7, Wed. 1,848 9.75 7.98 9.29 27.02 29.24
May 8, Thu. 949 7.52 5.62 7.89 21.03 44.32
May 9, Fri. 1,146 10.03 8.78 8.96 10.49 38.26 66.77
May 10, Sat. 1,372 4.41 5.53 8.48 7.76 26.18 38.16
May I1, Sun. 1,354 19.12 17.02 10.56 8.44 55.14 81.45
May 12, Mon 2,430 10.74 11.82 10.88 8.36 41.80 34.40
May 13, Tue. 1,366 8.69 7.99 16.68 24.42
May 14, Wed. 1,370 8.29 7.20 10.24 8.61 34.34 50.13
May 15, Thu. 1.164 9.41 9.10 11.48 29.99 51.53
May 16, Fri. 1,276 9.63 8.64 10.49 28.76 45.08
Totals: 22,239 149.64 138.14 115.51 93.86 497.15 44.7
7f~r C15oIWWaste\SOr15TA\DesignCnteriaMemoOCt03.tl¢ \a2sroa Pages
SECTIONTWO Waste Types and Operations Criteiri a
r
Summary: Daily Avg. Yearly Est Daily Avg. Yearly Est
Vehicles: 1,483 541.295 Tons: 33.14 12,096.10
Pounds: 66,280 24,192,200
Avg. Lbs.Nehicle 44.69
2.4 ON•SITE TRAFFIC ANALYSIS AND STATION CAPACITY
2.4.1 Types Of Traffic and Peak Arrival Rates
Weekdays Daily Totals Peak Hourly Ratec
Commercial Vehicles 102 20
Transfer Trailers (from transfer stations) 10 2
Public Vehicles 2,400 Mon. only 267
1,300f Rest of week
Transfer Trailers (to west side), 22 tons/trailer ill 13 2 ~~l
Recovered Material Trucks 2 1 ~~l
Employees 15 c2>
Weekends Daily Totals Peak Hourly Ratec
Commercial Vehicles 10 2
Transfer Trailers (from transfer stations) 5 1
Public Vehicles 1,400 156
Transfer Trailers (to west side) 5 1 ~l~
Recovered Material Trucks 0
Employees 5 tzl
The above rates are all based on a final station capacity of up to 300 TPD.
ill It is expected that the arrival and departure of transfer trailers to the west side and trucks
removing recovered recyclables from the site can be scheduled so as not to occur during
peak arrival times for waste hauling trucks.
cz) Employee arrival and departures will not be at peak waste amval times, plus their routing
will not impact the waiting and queuing requirements.
**st C'15oiidWaz[el5ort5TF47esigr~Cri[enaMemoOCl03.tloc iorzsroa Pageb
SECTIONTWO Waste Types and Operatiogs Criteria
2.4.2 Station Capacity
For Station Capacity, only the time that a vehicle occupies a specific area thus preventing the
next vehicle from occupying that same area is considered. Thus, only the time at the scalehouse
and the unloading stalls is considered for station capacity for the commercial/transfer vehicles.
At present, the general public does not need to stop at the scalehouse; therefore, their service
time on site is reduced.
The peak arrival rates for vehicles are 22 vehicles per hour (VPH} (commerciaUtransfer trailers
weekday), 267 VPH (public, weekday), and 156 VPH (public weekend). Due to the high peak
hourly arrival rates of public vehicles, and the fact that many of these vehicles contain loads of
less than SO lbs., it would be beneficial to include a location where the public can unload these
small loads without coming directly to the Reload Facility
In determining the capacity, it is also reasonable to assume that, as a minimum, 15% of the
public will unload in separate areas on the site (resource pazk, recycling center, green wastes).
Therefore, the peak arrival rates for unloading at the Sort Station aze:
• 22 VPH commercial/transfer trailers, weekdays
• 227 VPH public, weekdays
• 133 VPH public, weekends
' Commercial/Traosfer Trailer Vehicles
Service Time:
Time at scalehouse 1.0 min.
Time to maneuver, unload and exit building 12.0 min.
Miscellaneous delays 1.0 min.
Total 14.0 min.
Ca acit
A total of 6 stalls are available for commerciaUtransfer trailer vehicle unloading.
Capacity =one stall can accommodate 60/14 = 4.28 VPH.
4.28 vehicles/hr x stall x 6 stalls = 26vehicles per hour.
This is greater than the 22 VPH peak arrival rate.
*~~t+ G'\SOlitlWasle~Sat STA\DasigriCnteriaMennQ;t03.doc iorzaroa Pagel
SECTIONTWO Waste iylpes and Operations Criteri a
Public Vehicles
Service Time:
Time at scalehouse (public vehicles are not weighed) 0.0 mire,
Time to maneuver, unload and exit building 4.0 miry.
Miscellaneous delays 1.0 m
Total 5.0 miry.
Capacity
A total of 18 stalls aze available for public vehicle unloading on weekdays, and 24 stalls are
available for public vehicle unloading on weekends.
Capacity =one stall can accommodate 60/5 = 12 VPH.
12 vehicles/hr x stall x 18 stalls = 216 VPH weekday, approximately equal to 227 VPH
12 vehicles/hr x stall x 24 stalls = 288 VPH weekends, greater than 133 VPH peak.
Summary of Station Canacitv
Vehicle Peak Hourly Arrival Rate No. of Stalls Station Canacitv
Commercial/transfer (weekday) 22 VPH 6 26 VPH
Public (weekdays) 227 VPH 18 216 VPH
Public (weekends) 133 VPH 24 288 VPH
Queuing Requirements
The capacity analysis above indicates that the Station has sufficient capacity to handle the peak
arrival rates. However, queuing may occur due to the random arrival of vehicles within the peak
period. By utilizing the queuing theory for multiple channels in the Transportation Handbook, a
95% probability of the maximum queuing length can be calculated. The results are as follows:
Peak Station No. of 95% Queue Length
Vehicle Arrival Capacity Stalls ueue Required Provided
CommerciaUTransfer Trailer 22 26 6 0 0 200 ft.
Public Weekday 227 216 18 10 250 ft. 375 fr.
Public Weekend 133 288 24 0 0 375
The 95% queue represents the 95% probability that the number of vehicles shown in queue will
not be exceeded. That is, 10 vehicles or 250 ft. will only be exceeded 5% of the time. The
queuing length provided is only the length of queue provided prior to the scalehouse for
commercial, and from the Sort Station back to the recycling area for the public.
* *pC C:4SOliE WxM\Sort STA1Des~gnGitenaMemo Ocl°3 tla io2sroa Page 8
SECTIONTWO Waste Types and Operations Criteria
' 2.4.3 Surge Capacity
In the design of the new Reload Facility, the size of the tipping floor should be sufficient to
allow for some surge capacity to accommodate for the random arcival of the waste vehicles and
the loading rate of the transfer trailers. The design criteria which has commonly been considered
for Station design is a surge capacity of 1/2 to 1 day's daily throughput.
• Normal area available for waste storage - 5,200 sq.ft.
• With push walls, average depth of waste ~ 6-ft. over the available floor area.
• Average density of loose wastes _ 14 Ib. per cu.ft.
• Surge capacity = (5,200 x 6 x 14) / 2,000 = 218 tons > 150 tons (1/2 day's storage.
• Peak area available for waste storage ~ 7,000 sq.ft.
• Surge capacity = (7,000 x 6 x 14) / 2,000 = 294 tons which is about equal to the maximum
daily volume of 300 tons.
c~soiaw~a~sonsTa~oe~9ocnce~iememooaa+.aoc iorzao< Page9
SECTIONTHREE Specific Design Criteri ~
3.1 ARCHITECTURAL
3.1.1 Codes
The 1991 Edition of the Uniform Building Code and the 1983 Hawaii County Code, 1995
edition.
Reload Facility
• Occupancy Classification: B-4
• Type of Construction: Type II-N
• Expected Life: 30 years
Staff Facilities
• Occupancy Classification: B-2
• Type of Construction: Type II-N
• Expected Life: 30 years
Office Building(Future)
• Occupancy Classification: B-2
• Type of Construction: Type II-N
• Expected Life: 30 years
Scale House
• Occupancy Classification: B-2
• Type of Construction: Type II-N
• Expected Life: 30 years
Maintenance Facilit~~Future)
• Occupancy Classification: H-4
• Type of Construction: Type II-N
• Expected Life: 30 years
3.1.2 Accessibility to Buildings
Where applicable, the facility shall be designed to conform to the requirements of the American
Disabilities Act (ADA).
• Building Exits: Provisions of Chapter 33 of UBC
• Fire Resistive Standards: Provisions of Chapters 42 and 43 of UBC
47.~~ G~SdiaWastx\SOnSTF\OesignCri[enaMemoOctD3.tloc +orzaron Page 10
SECTIONTHREE Specific Design Criteria
' 3.2 CIVIL
3.2.1 Storm Intensity
The rainfall design storm (10 year-I hour) was interpolated from the Department of Public
Works County of Hawaii Storm Drainage Standard, October 1970. The intensity of a 10 year-1
hour design storm is approximately 5 in/hr.
3.2.2 Storm Drainage
All storm water will be collected on-site and drained to on-site detention ponds for treatment.
3.2.3 Domestic Water Supply
• Available from County of Hawaii, Department of Water Supply system. A 12"~ water main
runs along the Leilani Street and terminates near the intersection of Leilani Street and the
roadway to the existing transfer station. The distance from this intersection to the new
Transfer Station entrance is approximately 1,200 ft.
• Shall be utilized for sanitary use, washdown, fire hydrants and irrigation.
3.2.4 Sanitary Sewer System
• Collected and treated on site with septic tank and drain field.
• Shall be utilized for sanitary use and for collection of washwater, which have come in contact
with the solid wastes.
3.3 STRUCTURAL
3.3.1 Codes
• The 1991 Edition of the Uniform Building Code, the 1983 Hawaii County Code, 1995
edition, and the Prescriptive Details for Hurricane-Resistant Construction (1991 UBC
Appendix Chapter 25.)
• Latest editions of AISC and ACI.
3.3.2 Design Live Loads
• Roof: 20 psf roof live load
3 psf mechanicaUelectrical loading
C15o1~aWaste\SOnSTAtDesignGriferieMemoOClO&EOC iazaua Page 1]
SECTIONTHREE Specific Design Criteirfi a
Actual load of mechanical equipment if suspended or
supported off roof structure
• Floors: HS-20 highway loading
3.3.3 Wind Design
• Per UBC: Basic wind speed, 80 mph
Exposure Condition C
3.3.4 Seismic Design
• Per UBC: V = (ZIC _ RW)W
Z = 0.40, Zone 4 seismic zone
I = 1.00, Normal Importance Factor
C = 2.75
W =total seismic dead load
• Building System
Reload Facility: In the short direction, R = 6 (steel OMRF)
In the long direction, R = 6 (Mixed concentrically braced
steel frames and steel OMRF)
Staff Facilities: In both direction, R = 6 (masonry sheaz walls)
Maint. Facility (Futurel: In the short direction, R = 6 (steel OMRF)
In the long direction, R = 8 (concentrically braced steel
frame)
Office Building
(Futurel: In both direction, R = 8 (timber light framed walls with
shear panels)
Scale House: In both direction, R = 6 (masonry shear walls)
All foundation designs shall be based on the fact that all foundations will be constructed on the
on-site rock. Areas will be cleared or excavated to sound rock for the foundation construction.
Allowable bearing pressure for foundation design assumed to be no less that 4 ksf.
**p~. C\SOlitlWasta\SOrtSTnlDesignCntenaMemoOC103tloc torzaron Page 12
SECTIONTHREE Specific Design Criteria
' 3.4 MECHANICAL
3.4.1 Codes
• The 1991 Edition of the Uniform Plumbing Code, 1991 Uniform Building Code, 1991
Uniform Mechanical Code, 1991 Uniform Fire Code, 1993 National Electric Code
• The 1983 Hawaii County Code, 1995 edition.
3.4.2 Heating, Ventilation and Air Conditioning
Outdoor/Ambient Design conditions
• Summer: 85° F DB / 74° F WB / 75% R.H.
• Winter: 61° F
Indoor Design Conditions
Air Conditioned Areas
• Summer: 75° F, 50% R.H.
• Winter: 72° F
Non-Air Conditioned Areas
1 • Summer: As indicated under "Ventilation"
• Winter: 60° F
Ventilation
• The Reload Facility and the Maintenance Facility: 6 air changes per hour (no heating)
• The Office Building, the Staff Facilities and the Scale House (heated, ventilated and air
conditioned): 15 CFM per person
• Locker Room: 25 CFM per person
Rest Room : 50 CFM per Fixture (Exhaust)
3.4.3 Fire Protection
Sprinkler systems will not be required for any of the Facilities on this site. Afire main system
with hydrants will be required.
c:+souawac~+sortsrn~s~e~a~u~ro~„oama.ao~ +orzaroa Page 13
SECTIONTHREE Sueciflc Design Criteri a
3.5 ELECTRICAL
3.5.1 Codes
All work shall conform to the following requirements.
• The 1993 National Electric Code (NEC)
• The National Electric Safety Code (ANSI C2-1993)
• The 1983 Hawaii County Code, 1995 edition
3.5.2 Plant Service Design
• Utility service to the site is by Hawaii Electric Light Company (HELLO.) Service is 15 kV
Class, 3-phase primary cable and step-down transformers with low voltage metering.
• 480/277 volt, 3-phase, 4-wire solid grounded system.
• 120/280 volt, 3-phase, 4-wire solid grounded neutral system.
3.5.3 Lighting Design
Reload Facility Buildin¢
• 30 foot candles
• metal halide lamps
• 480V ballast
Staff Facilities
• 60 to 80 foot candles
• Fluorescent lamps
• 277V ballast
Office Building~Future)
• 60 to 80 foot candles
• Fluorescent lamps
• 277V ballast
Scale House
• 60 to 80 foot candles
• Fluorescent lamps
• 277V ballast
Maintenance Facility~Future)
• 30 foot candles
*7~L+ C\SOlidWas[etSOrtSTA~DesignCnteriaMemoOCl03.tloc tarzeroa Page 14
SECTIONTHREE Specific Design Criteria
1. Metal halide lamps
• 480V ballast
$uildina Exterior and Street Li~htinQ
• 1+Foot Candles
• Low Pressure Sodium
• 480 Volt Ballast
*TVC c~.sabwas~eisonsrn~ro~n~~~aMe~.po~ma.em iorzeroa Page 15
SECTIONFOUR General Material Specifications
4.1 BASIC MATERIALS OF CONSTRUCTION
Reload Facilitv
Foundations and Slab Concrete
Retaining Walls Concrete
Superstructure Steel Frame
Roof Deck Metal
Walls Masonry and Metal
Insulation Not Required
Staff Facilities
Foundations and Slab Concrete
Walls Masonry and Metal
Roof Deck Metal
Insulation R - 19walls, R- 30 roof
Office Buildin¢
Foundations and Slab Concrete
Superstructure Masonry and Metal
Roof Metal
Insulation R - 19 walls, R- 30 roof
Scale House
Foundations and Slab Concrete
Superstructure Masonry and Metal
Roof Metal
Insulation R - 19 walls, R- 30 roof
Maintenance Facilitv
Foundations and Slab Concrete
Superstructure Steel Frame
Roof Deck Metal
Walls Concrete and Metal
Insulation Not Required
The use of recycled building materials shall be utilized as much as possible (based on availability
and cost). Typical items would be paints, plastics for benches and curbs, partitions, rugs, etc.
The following are general requirements for the basic materials of construction. Detail
requirements are included in the project technical specifications.
C:45olitlWastelSortSTA~Desigr~CnhriaMemoOc103.Da ~orza~oa Page l6
SECTIONFOUR General Material Specifications
4.2 CONCRETE
All concrete shall have a minimum compressive strength of 4,000 psi at 28 days unless
otherwise noted.
• Concrete for the reload building floor shall have a minimum compressive strength of 5,000
psi at 28 days.
4.3 REINFORCING STEEL
All reinforcing bars shall conform to the ASTM Standards for A-615 Grade 60 bars.
All reinforcing bars to be welded shall conform to the ASTM A706.
• All welded wire fabric shall conform to ASTM A-185.
4.4 STRUCTURAL AND MISCELLANEOUS STEEL
All structural and miscellaneous steel shall conform to ASTM Standards for A-36; FY = 36
ksi yield.
• All wide flange shapes shall conform to ASTM A992. FY = 50 ksi.
• All Hollow Structural Shape (HSS) shall conform to ASTM A 500, Grade B, Fy = 46 ksi
• All bolted connections shall be made with high strength bolts ASTM A-325N.
• All welded connections shall be made with E70XX electrodes.
C1Solid WasteU^ort STA~Desig~ri[enaMemo Oa03 tloc iorz~oa Page 17
l~~\M
SECTIONFIVE Communicatiot>t $
5.1 COUNTY OF HAWAII, DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
The key personnel at the County of Hawaii for this project is as follows:
• Bazbaza $ell, Director
Department of Environmental Management
Phone: (808)961-8083
Fax: (808)961-8086
Email: bbell@co.hawaii.hi.us
• Lono Tyson, Operations Manager
Department of Environmental Management
Phone: (808)961-8515
Fax: (808)961-8553
Email: demswd@ilhawaii.net
• Eileen O'Hara-Weir, Recycling Manager
Department of Environmental Management
Phone: (808) 961-8942
Fax: (808)961-8086 C
Email: demrc@interpac.net
5.1.1 Correspondence
All correspondence shall be directed to the Project Manager, Ms. Barbara Bell. This includes
letters, invoices, memorandums, and requests for information, both technical and administrative.
The mailing address is:
Environmental Management
County of Hawaii
25 Aupuni Street, Room 208
Hilo, HI 96720
5.1.2 Invoices
Invoices from URS Corporation will be submitted on a monthly basis. The invoice shall contain
the following data:
• Status of present costs to the budget
• Work performed in past month
C'.\SOIM Wss[e\SOrt STP\DesignGntenaMemo OCL03 da iorzaroa Page 18
SECTIONFIVE communications
• Work to be done in next month
• Status of progress with established schedule
5.2 URS PROJECT TEAM
The project team and key personnei for this project consists of the following:
Key. Firms
Prime Consultant: URS Corporation
Subconsultants: Rifer Environmental, Wayne Rifer
David Robichaux
Kev Personnel
Project Manager: Wayne Rifer, Rifer Environmental
Phone: 503-644-0294
Fax: 503-643-9705
Emaii: wrifer@concentric.net
Project Ettgineer: RobeR Cara, URS Corporation
Phone: 503-948-7281
Fax: 503-222-4292
Email: robert_cam@urscorp.com
Environmental Manager: David Robichaux
Phone: 808-637-$030
Email: robichaud001@hawaii.rr.com
5.2.1 Correspondence
All correspondence shall be directed to the Project Manager, Mr. Wayne Rifer. This includes
letters, memorandums and requests for information, both technical and administrative.
As the project progresses, URS will assign a lead civil, lead structural, lead mechanical, and lead
electrical engineer.
5.3 Additional Contact Information for the County and Utility Companies
• Hawaii Electric Light Company
Mei Yamaki @ Engineering
Phone: (808)935-i17i
**pC. c.~soibwuersortsrnwesro~c~rte~amaoooam.ace iwisroa Page 19
SECTIONFIVE communlcatlon~ s
Fax: (808)969-0316
Elton Yoshida, Planner
Phone: 808-969-0334
Request No. Hl l 56 90
• Verizon -Hawaiian Telephone
Phone: (808) 843-1000
• Public Works, County of Hawaii
Dianne Shiro, Business Manager
Phone: (808)961-8321
• Building Division, County of Hawaii
• Brian Kajikawa, Acting Division Chief
Patrick Tanihiro
Phone: (808) 961-8471
• Engineering Division, County of Hawaii
Galen Kuba
Phone: (808)961-8327
• Department of Water Supply, County of Hawaii
Engineering Department
Phone: (808)961-8070
• Waste Water Division, County of Hawaii
Peter Boucher, P.E.
Phone: (808) 961-8338
• Fire Department, County of Hawaii
Jack Pacleb,Inspector
Phone: (808)961-8350
**~C C'\SOlitlWasteVSOrtSTA\Desig~rilenaMemoOCl03.EOC ~orzaroa PAge20
Appendix C: Monthly Facility Inspection Checklist
Monthly Sort Station Inspection Form
East Hawaii Regional Sort Station
Date: Time of Da
Ins ector Name: Weather Conditions:
Ins ector Si nature:
YES NO Date/Time Corrected
1. Entrances and roadwa s
Signs posted with adequate information (entrance,
traffic control safer ,hazardous waste rohibition,..
• Drivin areas raded, drained, and free of obstructions?
• Access secured b lockin ate?
2. Personnel
• Safer a ui ment rovided and used?
First-aid su lies and communication rovided?
• Ladders o erational /free from dams e?
3. O erations
• Unloadin watched b s otter / o erator?
• Sum sand catchbasins maintained?
• E ui ment free of leaks and s ills?
• Store a areas clean and free of s ills?
• Loaded Trailers /Boxes hauled when feasible?
4. Environmental
• Effective litter control measures in place? Blowing
Debris
Effective dust control measures in lace? Visible Dust?
• Effective est control measures in lace?
• Effective odor control measures in lace?
Effective control of wheel trackin in lace?
• Stormwater and sanita dischar a se arated?
5. Other
• Fire, olice, and emer enc res onse available?
• Fire extinguishers accessible, mounted, signed, fully
char ed, and ins ected monthl ?
• Ade uate li htin rovided?
• Dail and monthl records maintained?
Re~dsed lOR9lOA
Appendix D
Facility Maintenance Checklist
Daily
Clean /sweep break room, empty baskets, restock supplies.
Clean /sweep scalehouse, empty wastebaskets, restock supplies.
Clean tipping floor and trailer loading bays.
Water plants /shrubs as needed.
Litter Collection
Monitor and control vectors.
Monitor and clean recycling area.
Clear drainage inlets of obstruction.
Equipment maintenance.
Weeklv
Patrol neighboring properties for migratory litter.
Mop, sanitize and dust break room and scalehouse.
Check and maintain drainage and road conditions on non-asphalt areas of
the property.
Weed and/or mow landscaped areas as needed.
Clear debris from storm and sanitary pits.
Monthly
Site Manager or designee conducts monthly facility inspection.
Facility employees follow up on deficiencies noted in facility inspection
ASAP.
Service scalehouse HVAC equipment per manufacturers
recommendations.
Clean push wall.
Sweep, vacuum and dust equipment and panels in electrical room.
Other
Cleaning wall and roof panels.
Re-stripe roads as needed.
Remove sediment buildup in storm ponds (if necessary).
Fertilize landscaping.
Service water heater per manufacturer's recommendations.
Lubricate and clean exhaust fans per manufacturer's recommendations.
Repaint painted surfaces as needed.
Repair surface erosion areas on an as needed basis.
Repair any surfaces, equipment or site features damaged during
Operations.
DRAFT EHRSS OPERATIONS PLAN
Revised IOYL9104
gppendix E
East Hawaii Regional Sort Station
Hazardous W aste Exclusion Plan
DRAFT EHRSS OPERATIONS PL.41~'
TABLE OF CONTENTS
INTRODUCTION
Hazardous Wastes
PCB Wastes
Other Prohibited Wastes
Special Wastes
LOAD INSPECTION PROGRAM
Customer Notification
Procedures at the Scalehouse
Random Load Inspections Procedures
Identifying Prohibited Wastes
MANAGING PROHIBITED WASTES
Hazardous Wastes
PCB Wastes
Other Prohibited Wastes
TRAINING
RECORD KEEPING
ATTACHMENTS
Load Inspection Form
INTRODUCTION
This hazardous waste exclusion program is designed to prevent prohibited wastes
from entering the transfer station. Prohibited wastes include regulated hazardous
' wastes, regulated PCB wastes, and other wastes prohibited by state or local
regulations or permit conditions.
The USEPA's RCRA Subtitle D operating criteria for eacluding hazardous waste
from municipal solid waste landfills can be found in The Code of Federal
Regulations (CFR), Part 258, Subpart C, Section 258.20 which reads as follows:
Owners or operators of all MSWLF units must implemer:t a program at the
facility for detecting and preventing the disposal of reguated hazardous wastes
as deftned in part 261 of this chaper and polychlorinated byphenyls (PCB) wastes
as defined in part 761 of this chapter. This program must include, at a minimum:
Random inspections of incoming loads unless the owner or operator takes
other steps to e~:sure that incoming loads do not contain regulated
hazardous wastes or PCB wastes.
Records of arty inspections.
Training of
facility personnel to recognize regulated hazardous waste mui
PCB wastes, a~uf
Notification of State Director of authorized States under Subtitle C of
1 RCRA or the EPA Regional Administrator in an unauthorized State if a
regulated hazardous waste or PCB waste is discovered at the facility.
For the purpose of this section, regulated hazardous waste means a solid
waste that is a hazardous waste as defined in 40 CFR 261.3, that is not
generated by a conditionally exempt generator as defined in paragraph
261.5 of this chapter.
Household hazardous waste and hazardous waste generated by a conditionally exempt
generator aze exempted from the screening requirements.
PROHIBITED WASTES
This transfer station is allowed to receive municipal solid waste and various non
hazardous industrial and special wastes as authorized by the State solid waste permit and
regulations.
The landfill is prohibited from accepting:
- hazardous wastes
PCB wastes
- Other prohibited wastes
As described in the following sections.
HAZARDOUS WASTES
Hazardous waste is regulated under RCRA, Subtitle C. A waste is hazazdous if it
(1) is listed as hazardous waste in 40 CFR 261, Subpart D, or
(2) has the chazacteristics of hazardous waste as defined in 40 CRF 261, Subpart C.
The characteristics are:
Ignitability
Corrosivity
Reactivity
Toxicity (TCLP)
Ignitability
Any waste having a flash point of 140° or less falls into this category. Flash point is the
temperature at which a liquid gives off vapors that will ignite when an open flame is
applied.
Corrosivity
A substance having a pH below Z.0 or above 12.5 is defined as hazardous under RCRA.
Reactivity
A waste is reactive if it is normally unstable; reacts violently with water, forms a n
explosive mixture with water; contains quantities of cyanide or sulfur that could be
released to the air; or can easily be detonated or exploded.
Toxicity (TCLP)
The Toxicity Characteristic Leaching Procedure is a laboratory test where an acid
solution is passed through the waste under investigation. The acid solution containing the
material it has extracted is tested for a number of constituents that fall into three general
categories: heavy metals, pesticides, organic solvents.
If the regulatory levels for any constituents are exceeded, the waste is hazardous.
T.C.L.P. CONSTITUENTS AND REGULATORY LEVELS
CONSTTTUENT REGULATORY CONSTITUENT REGULATORY
LEVEL LEVEL
Arsenic 5.0 Hexachlorobenzen 0.13
Barium 100 Hexachlor 01,3-butadiene 0.5
Benzene 0.5 Hexachlorethane 3.0
Cadmium 1.0 Lead 5.0
Carbon Tetrachloride 0.5 Lindane 0.4
Chordane 0.03 Mercury 0.2
Chlorobenzen 100 Methoxychlor 10.0
Chloroform 6.0 Methy ethyl ketone 200
Chromium 5.0 Nitrobenzene 2.0
m-Cresol 200 Pentachlorophenol 100
o-Cresol 200 Pyridine S.0
p-Cresol 200 Selenium 1.0
Cresol 200 Silver 5.0
1,4-Dichlorobenzene 10.0 Tetrachloroethylene 0.7
1,2-Dichlorobenzene 7.5 Toxaphene 0.5
1,1-Dichiorethylene 0.5 Trichlorethylene 0.5
2,4-Dichlorophenoxyacetic 0.7 2,4,5-Tichlorophenol 2.0
2,4-Dinitrotoluene 0.13 2,4,6-Tichlorophenol 1.0
Endrin 0.02 2,4,5-TP (Silvex) 1.0
Heptachlor (and its hydroxide) 0.008 Vinyl Chloride 0.2
Regulated hazazdous waste must be disposed of at a permitted hazardous waste disposal
facility. Any material contaminated by a hazardous waste is also deemed to be a
hazardous waste. RCRA permits are required to store, transport, and treat hazardous
wastes.
The USEPA has given exemptions from storage, transport, and disposal requirements to
certain generators based on source and quantities. All hazardous waste generated by
households during their normal course of activities is exempt from regulations. Regulated
generators must notify the EPA that they generate hazardous waste and receive an
identification number from EPA or an authorized state agency. Many states have lower
iimits and more restrictive regulations. Categories of hazardous waste generators are as
follows:
Large Quantity Generators -Generators who produce more than 1,000 kg (2,200 tbs.}
of hazardous waste or 1 kg (2.21bs.) of acutely hazardous waste in a month must comply
with all waste regulations.
Small Quantity Generators - Generators who produce between 100 kg (22016s.) and
1,000 kg (2,2001bs) per month must comply with all applicable regulations including
disposing of their hazardous waste at a permitted RCRA Subtitle C facility.
Conditionally Exempt Generators - These are generators who produce less then 100kg
(2201bs.) per month of hazardous wastes. According to RCRA, these wastes may be
disposed of in a permitted MSW (non-hazardous) landfill. However, the landfill must be
permitted by the State to receive such wastes.
PCB WASTES
RCRA regulates polychlorinated biphenyls (PCB's) based on the concentration of PCB's
in the waste. The regulations contained in 40 CFR Part 761 contain these requirements:
• Waste cornaining more than SOOppm of PCB's must be incinerated.
• Waste containing from 50 to SOOppm must be disposed of by incineration,
approved burning, or in a chemical waste landfill permitted to receive such
wastes.
• The regulations are silent concerning wastes containing less than 50 ppm of
PCB's.
According to the Draft Technical Manuel for Solid Waste Disposal Facility Criteria - 40
CFR Part 258 (USEPA, April 1992), "PCB wastes do not include small capacitors found
in fluorescent light ballast, white goods (e.g., washers, dryers, refrigerators) or other
consumer electrical products (e.g., radio and television units)."; however, many state and
local governments have more stringent regulations.
1.3.2 OTHER PRO$II3ITED WASTES
1.3.2.1.1.1 WASTE 1.3.2.1.1.2 BASIS OF PROIIIBITION
Radioactive Wastes Nucleaz Re lato Commission re lations
Bulk Li uids RCRA Subtitle D (40 CFR 258.28
Medical Wastes (non sterilized State Solid Waste Re lations
LOAD INSPECTION PROGRAM
The purpose of the load inspection program is to detect prohibited wastes and discourage
attempts to dispose of them at the transfer station.
1.3.3 CUSTOMER NOTIFICATION
A key component of the load inspection program is the notification of customers that
certain wastes are unacceptable for acceptance at the transfer station. Customers will also
be notified that they retain responsibility for any prohibited wastes detected in their load.
This notification process is accomplished through the use of signs and notices.
A sign will be posted near the entrance to the transfer station. The sign will list wastes
that are prohibited and also state that a random load inspection program is in effect.
Notice with a list of prohibited wastes will be periodically distributed at the scale house.
1.3.4PROCEDURES AT THE SCALEHOUSE
The initial step in the inspection program is to review incoming loads at the scalehouse.
The scaledhouse staff will observe incoming loads for any indication of the presence of
prohibited wastes. Should the staff encounter suspicious-looking loads, they will summon
appropriate transfer station personnel for further evaluation of the load. If prohibited
wastes aze identified during inspection of a load, the prohibited portion will be rejected
and not allowed into the disposal area. If hazardous or PCB wastes aze detected, the
entire load will be rejected.
1.3.SRANDOM LOAD INSPECTION PROCEDURES
The major elements of load inspections aze:
Spread, break up, and visually examine wastes
Flag suspicious wastes
Conduct field tests
Collect samples for lab tests
Maintain proper records
Loads to be inspected will be selected at random. About 1% of commercial or industrial
haulers (front loaders, roll-offs, dump trucks) should be inspected with a minimum of 50
vehicles per yeaz and a maximum of 1 vehicle per day.
A load to be inspected will be selected at random and the driver will be notified at the
scale house.
The driver will be instructed to dump the waste into a designated area. The material will
be cazefuily observed for any hazardous or prohibited wastes.
During the inspection, the load inspector will complete the Load Inspection Report.
1.3.6IDENTIFI'ING PROHIBITED WASTES
The load inspector will use a variety of methods to detect prohibited wastes including:
? Questioning the driver about the source of the load and the nature of generators on
the route.
? .Examining product labels, especially warning labels.
? Liquids in containers for rejection.
? Sludges, powders, granular material or materials with unusual colors for rejection
and later evaluation.
? Inspecting containers to ensure that they are empty or do not contain prohibited
wastes.
? Evaluating the load for odors that are not chazacteristic of municipal solid waste.
Inspectors should never deliberately inhale vapors from suspicious materials or
containers because this may lead to injury or death.
? Searching for special items that have a high probability of containing prohibited
waste such as:
- transformers
- batteries
- filters
- compressors (Freon)
- mechanical equipment (capacitors)
- red bags (medical waste)
- bags that may contain asbestos
1.4MANAGING PROHII3TTED WASTES
The results of the load inspection will identify wastes as:
• Acceptable
• Unknown pending further testing
• Frohibited
Unknown wastes that are still undergoing analysis need to be properly segregated and
protected. This means that the waste(s) must be:
• Protected against the elements, rain, wind, etc.
• Secured against unauthorized removal
• Isolated from other wastes and activities
At the Manager's discretion, unknown wastes may be rejected and removed by the
hauler.
Prohibited wastes detected during the inspection should be returned immediately to the
hauler. If the hauler or generator is not available, the area will be cordoned off and
hazazdous waste emergency contractor will be called immediately.
1.5 TRAINING
Load inspectors, site managers, equipment operators, and scale house staff will be trained
in the contents of this plan. Training will address the following topics:
Customer notification, inspection pad construction, and load inspection
procedures.
Identification of hazardous wastes, PCB wastes and other prohibited wastes.
Waste handling procedures (acceptable and prohibited wastes).
Health and safety.
Record keeping.
Documentation of training should be placed in the transfer stations operating record.
1.6 RECORD KEEPING
The following records will be maintained at the transfer station:
Load inspection reports
Records of hazardous or PCB waste notifications
Training records
Load inspection reports will be completed for each load that is inspected. All information
on the attached load inspection report will be provided.
State or EPA notification is required whenever a hazardous or PCB waste is detected.
Records of these notifications will be kept and will include the date and time of
notifications, agency and individual contacted with phone numbers, and the information
that was reported.
Records documenting the successful completion of training will be maintained. Training
session records will identify (1) the topics covered, (2) the date of training session, (3)
instructor's nameltitle, (4) employees' signatures, (5) employees' job titles, and (6)
documentation by the trainer of successful completion.
EAST HAWAII SORT STATION
LOAD INSPECTION FORM
Date and Time of Inspection
Inspector's Name
Name of Hauling Company Phone Number
Driver's Name Vehicle License Number
Type of Vehicle (ie, roll-off, front loader, dump trucks)
Size of Load, ards Sources of Waste
LOAD CONTENTS
Wastes Estimate % b Volume
Household Wastes
Wood
Metal
P Carboazd
Plastic ribber ass
Yazd waste bras stum s
Containers
Bulk li aids
Powders dusts
Soil
PROHIBTTED WASTE INDICATORS
YES NO
Labeled hazardous waste
Batteries
Oil
Medical
Radioactive
Ashes
Contaminated Soil
Odors unusual
Colors unusual
Heat excessive
Smoke
INSTPECTION RESULTS
Prohibited wastes identified?
Further action required? (i.e., none, lab tests, notification)
Samples sent total? Lab Name Phone
Test Requested
Driver Signature Load Inspector Signature
Revised 10/?9/04
Appendix F
Key Personal Staff
Phone Numbers
TO BE DETERMINED
PHONE CELL
NAME POSTTION NUMBER PHONE NO.
OUTSIDE CONTACTS
CONTACT PHONE NO.
Police 911 (Emergency) (808) 935-3311 (Non-Emergency)
Fire 911 (Emergency) (808) 961-8336 (Non-Emergency)
Ambulance 911 (Emergency) (808) 961-8319 (Emergency)
State Dept of Health (808) 586-4240 (Solid/Hazardous Waste Branch)
1>RArT EtiRSS OP£RATIO'.~S P1.A7~
~ EXHIBIT D
LIST OF RESPONDERS TO REQUEST FOR
INFORMATION
Earlier in 2004, a request for information process was conducted in
conjunction with this project. The names of the responders were made
public and available for inspection. In fairness, the list is reproduced below:
~Ar. Dennis E. Bentley Mr. Joe Hernandez Mr. Kevin Matthews, President
fVD WMI CANADA COMPOSTING, INC.
101 N. Front Street P O Box 384419 390 Davis Drive, Suite 301
2io Vista, CA 94571 Waikoloa, HI 96738 Newmarket, Ontario L3Y 7T8
~,ai~ S. Einstein, Ph.,_ Jody Allione Mr. Stephen Yee, Project Manager '
brow Ecology, Ltd. BARLOW PROJECTS, INC. SSFM INTERNATIONAL
105 Carmel Road 2000 Vermont Drive 501 Sumner Street, Suite 502
Nheeling, VVV 26003 Ft. Collins, CO 08525 Honolulu; HI 96817
iteven Morris Michael W. Hucks, Sr. Vice Pres. Mr. AI Inoue
VASTE RECOVERY SYSTEMS Business Development NORTON ENVIRONMENTAL
{3655 Marlinspike Drive BRIGHTSTAR ENVIRONMENTAL 101 Aupuni Street, #1001
Aonarch Beach, CA 92629-4428 7700 San Felipe, Suite 480 Hilo, HI 96720
Houston, TX 77063-1613
r. Chris Pope Mr. Larry Leaf Mr. Larry Richardson, President
Tech Environmental ENVIRONMENTAL GROUP EAC Operations, Inc.
d Floor, 49 Gras Lawn 350 Ward Avenue 79 North Pearl Street
KETER, DEVON, EX2 4SZ Honolulu, HI 96814 Albany, NY 12207
Ar. Wilbert C.F. Chee Mr. Hilburn Hillestad
Vil Chee Planning,lnc./HERHOF JDI/Geoplasma, LLC
iMSA Center 1349 West Peachtree Street
400 Rycroft Street, Suite 928 Atlanta, GA 30309
ionolulu, HI 96814
EXHIBIT E
CHARACTERISTICS AND GUARANTEED QUANTITIES
OF
MUNICIPAL SOLID WASTE
ESTIMATED MINIMUM
ANNUAL TONS
RECYCLING RESIDUALS 1,000
MUNICIPAL SOLID WASTE 44.625
TOTAL GUARANTEED ANNUAL WASTE 45,625
EXHIBIT F
PERFORMANCE GUARANTEES
1 EXHIBIT F
PERFORMANCE GUARANTEES
1. CAPACITY GUARANTEE
The Facility shall be capable of processing not less than tons per year (TPY) of
Municipal Solid Waste in accordance with the Performance Test Procedures provided in Exhibit
2. COMPLIANCE WITH REGULATIONS
The Facility shall be constructed, operated and maintained in compliance with all
applicable federal, state, and local laws, ordinances, codes, regulations and court orders,
concerning the operation and maintenance of the Facility as interpreted and as in effect on the date
of submittal of the Pricing Proposal.
4. DISPUTE RESOLUTION PROCEDURE. The following procedure, unless specifically
modified in the contracts, shall be used for resolution of disputes:
a. If any dispute between the County and the Contractor arises, they shall meet to
resolve such dispute. If, during the meeting, either party feels that the dispute
cannot be resolved, the dispute shall be submitted to the ITP for resolution.
b. Within five (5) working days, the County and the Contractor shall submit to the
ITP, in writing, their interpretations of the dispute, their positions, and the reasons
for their positions. If the submittal is mailed, the postmarked date shall be
considered the submittal date. By mutual agreement the date of submittal can be
extended by the parties.
c. The ITP shall render its decision within three (3) weeks of receipt of the submittals
1 unless otherwise specified in the Contracts. If the ITP determines that more
information is required for a decision to be made, the parties shall submit such
information in the time frame specified by the ITP.
d. If the ITP determines that a decision cannot be rendered within three (3) weeks,
the ITP shall inform the parties in writing, giving the reasons therefor and the
expected timetable to render the decision.
e. The decision rendered by the ITP shall be binding upon the County and the
Contractor.
1
EXHIBIT G
SELECTION OF AND RESOLUTION OF CONFLICTS
BY INDEPENDENT THIRD PARTY
7
7
EXHIBIT G
INDEPENDENT THIRD PARTY
SELECTION AND DISPUTE RESOLUTION PROCEDURE
1. GENERAL. This exhibit describes the purpose of the Independent Third Party (ITP), the
procedures for selection of the ITP and the procedures for resolution of disputes.
2. PURPOSE. The purpose of the ITP shall be to expeditiously resolve disputes between the
County and the Contractor which may arise during the course of the project and which the
parties are unable to resolve. The intent is to prevent delay and litigation.
3. SELECTION PROCEDURE. The following procedure shall be used by the County and the
Contractor to select the ITP:
a. The County and the Contractor shall each submit to the other the names of not less than
three (3) nor more than six (6) potential independent third parties which each believes are
qualified for the project and has no conflicts of interest.
b. From this list, the County and the Contractor each shall select at least two (2) and not
more than three (3) to invite to participate in an evaluation and selection procedure.
c. Resumes detailing their work experience to demonstrate applicable related experience and
competence in the construction, operation and maintenance of municipal solid waste
reduction facilities shall be requested from invitees. Additionally, each invitee shall be
requested to submit a certification that he has never been employed by nor has a financial
interest in any party to the contract.
d. The Contractor and the County shall each select one invitee who shall be interviewed by a
panel consisting of two (2) representatives each from the County and the Contractor and
their qualifications evaluated and rated.
e. If after the interview the County and the Contractor cannot agree on the selection, the two
finalists shall be rejected and the process begun again at step "a." above, provided that
neither County nor Contractor shall name either of the rejected potential ITP's, until such
time as one is agreed upon.
PROTOTYPE INDEPENDENT THIRD PARTY AGREEMENT FOR
CONFLICT RESOLUTION BETWEEN THE PARTIES TO A CONTRACT FOR
CONSTRUCTION, OPERATION AND MAINTENANCE OF A MUNICIPAL
SOLID WASTE REDUCTION FACILITY
THIS THREE PARTY AGREEMENT, made and entered into this day
of ,among the County of Hawaii, hereinafter called
the "COUNTY", and ,hereinafter called the
"CONTRACTOR", and ,the Independent Third
Party, hereinafter called the "ITP".
WITNESSETH, that
WHEREAS, the COUNTY is now engaged with the CONTRACTOR in the Construction,
Operation and Maintenance of a Municipal Solid Waste Reduction Facility; and
WHEREAS, the Contracts for the Construction, Operation and Maintenance of a Municipal
Solid Waste Reduction Facility contract provides for retaining the ITP to resolve disputes; and
WHEREAS, the ITP has been selected by the COUNTY and the CONTRACTOR;
NOW THEREFORE, in consideration of the terms, conditions, covenants and performance
contained herein, or attached and incorporated and made a part hereof, the parties hereto agree
as follows:
I
DESCRIPTION OF WORK
In order to resolve disputes between the COUNTY and the CONTRACTOR, the COUNTY,
has provided, in the Contracts for the Construction, Operation and Maintenance of a Municipal
Solid Waste Reduction Facility, for the establishment of the ITP. The intent of the ITP is to fairly
and impartially consider the disputes placed before it and provide written decisions resolving these
disputes to the COUNTY and the CONTRACTOR. The ITP shall perform the services necessary
in accordance with this Exhibit G of the Contracts between the
COUNTY and the CONTRACTOR.
II
COORDINATION
The COUNTY will, in cooperation with the CONTRACTOR, coordinate the operations of
the ITP. The ITP shall not begin any work under the terms of this Agreement until authorized in
writing by the COUNTY and the CONTRACTOR.
III
SERVICES
If and as necessary, the COUNTY will arrange for or provide conference facilities, and
' provide secretarial and copying services.
IV
TIME OF CONTRACT
The ITP is to be retained for as long as mutually agreed to by the COUNTY and the
CONTRACTOR. This Agreement may thus be terminated upon written notice by both the
COUNTY or the CONTRACTOR.
V
PAYMENT
Payment for services rendered by the ITP will be at the rate agreed to among the
COUNTY, the CONTRACTOR and the ITP, attached hereto as the "Fee Schedule." The ITP shall
1 submit an invoice documenting the time and expenses incurred. Payments shall be full
compensation for work performed, for services rendered, and for all expenses, materials, supplies
and incidentals. The COUNTY and the CONTRACTOR will each pay the ITP, one half of the ITP's
fees and expenses or in the proportion specified by the ITP if so called for in the contracts.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands the day and
year first above written.
COUNTY OF HAWAI I
HARRY KIM
Mayor
1 gy;
Title:
FederallD No.
APPROVED AS TO FORM AND LEGALITY:
Deputy Corporation Counsel
INDEPENDENT THIRD PARTY
By:
Title:
EXHIBIT H
GUARANTY AGREEMENT
7
7
EXHIBIT H
GUARANTY AGREEMENT
This Operating Guaranty Agreement made and entered into as of this day of
by and between the County of Hawaii, a municipal
corporation duly organized and validly existing under and by virtue of the laws of the State of
Hawaii (hereinafter referred to as the "County and a
corporation organized and existing under and by virtue of the laws of the State of
and ,
a corporation organized and existing under and by virtue of the laws of the State of
(being hereinafter referred to as the "Guarantors").
WITNESSETH:
WHEREAS, the County and , a
duly organized and validly existing under and by virtue of the
laws of the State of hereinafter referred to as the "Contractor"),
have entered into a Contract for the Operation and Maintenance of a Municipal Solid Waste
Reduction Facility of even date herewith (hereinafter referred to as the "Operating Contract"); and
WHEREAS, the Operating Contract requires that a person or persons guarantee certain of
the obligations undertaken by the Contractor in that Contract; and
WHEREAS, in order to induce the County to enter into the Operating Contract with the
Contractor, the
Guarantors have agreed to be such persons and to guarantee such certain obligations jointly and
' severally.
' NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter
set forth, the parties agree as follows:
1. GUARANTY
The Guarantors hereby jointly and severally covenant and agree and guarantee to the
County that if the Contractor should fail or refuse to perform obligations specified in Article 3 hereof
(the "Performance Obligations") and such failure or refusal constitutes an Event of Default of the
Contractor under the Operating Contract or if the Contractor fails or refuses to pay liquidated
damages pursuant to Section of the Operating Contract when such damages become
payable due to Contractor's default, then the Guarantors shall cause the Contractor to fulfill the
Performance Obligations or pay such liquidated damages, as the case may be, or as an alternative
exercisable at the Guarantors' sole option and discretion, shall fulfill the Performance Obligations
' or pay such liquidated damages, as the case may be, on behalf of the Contractor all in accordance
with the provisions of the Operating Contract.
2. PERFORMANCE OBLIGATIONS
The Performance Obligations covered by this Operating Guaranty agreement are, and are
limited to, the following:
a. The performance guarantees set forth in Exhibit _ of the Operating Contract;
b. The operation, correction, adjustment, repair, or replacement of the Facility or
adjustment of the methods of operation of the Facility necessary to fulfill the performance
guarantees pursuant to Sections and of the Operating Contract;
c. Payment of the annual adjustment due the County pursuant to Section of
the Operating Contract;
d. Adjustments, in accordance with Section of the Operating Contract, to the
Guaranteed Processing Cost:
(1) due to changes in the Facility at the request of the County or as a result of
Force Majeure, or
(2) due to the Facility performance at less than Guaranteed Capacity;
(a). Payment and adjustment for diversion of Municipal Solid Waste
pursuant to Section _ of the Operating Contract; and
(b). Payment of penalties pursuant to Section _ of the Operating
Contract due to the Contractor's fault.
3. LIMITATIONS AND CONDITIONS ON GUARANTORS' OBLIGATIONS.
In no event shall the Guarantors' obligations to the County with respect to performing the
Contractor's obligations be any greater than those of the Contractor pursuant to the Operating
Contract. Accordingly, it is expressly understood and agreed that all wnditions, limitations,
exclusions, adjustments, and remedies applicable to the Contractor's obligations under the
Operating Contract shall likewise be applicable to any determination of any obligations of the
Guarantors under this Operating Guaranty Agreement. It is further understood, however, that the
obligations of the Guarantors under this Operating Guaranty Agreement shall not be reduced or
discharged by reason of the bankruptcy or insolvency of the Contractor provided that such
bankruptcy or insolvency constitutes an Event of Default by the Contractor under the Operating
Contract.
4. INDEPENDENT AGREEMENT
Except for any portions of the Operating Contract expressly incorporated herein by
reference, and except to the extent that reference to and application of provisions contained in the
Operating Contract may be necessary to effect the intent of Article 3 hereof, this Operating
Guaranty Agreement is separate and distinct from, and independent of, any other agreement
between the parties and/or relating to the Facility and all rights, duties, and obligations of the
parties with respect to the objects of this Operating Guaranty Agreement are set forth herein.
5. ENFORCEMENT
The Guarantors hereby agree that this Operating Guaranty Agreement may be enforced
by the County without first resorting to any action against the Contractor or exhausting any other
' remedies against the Contractor which the County may have. The Guarantors hereby waive any
rights they may have to require any such prior enforcement or exhaustion of remedies.
6. BINDING EFFECT: TERM
The Guarantors agree that this Operating Guaranty Agreement shall be binding upon and
enforceable against the Guarantors, their successors and assigns for the benefit of the County, its
successors and assigns. The Guarantors agree that this Operating Guaranty Agreement shall
remain in full force and effect until all Performance Obligations shall have been fully and completely
discharged by the Contractor or the Guarantors, as the case may be.
7. CORPORATE EXISTENCE
The Guarantors covenant that during the term of this Operating Guaranty Agreement they
will maintain their respective corporate existence, will not dissolve or otherwise dispose of all or
' substantially all of their assets; except, however, that either Guarantor may consolidate with or
merge into another corporation, or sell or otherwise transfer to another corporation all or
substantially all of its assets and thereafter dissolve, provided that the following conditions are met:
1 a. the successor corporation, if other than the Guarantor, shall expressly assume
in writing the full and faithful performance of the Guarantor's duties and
obligations under this Operating Guaranty Agreement; and
b. immediately after such consolidation, transfer or merger, neither the Guarantor
nor such successor corporation, if other than the Guarantor, shall be in default in
the performance or observance of any duties, obligations or covenants under
this Operating Guaranty Agreement.
S. NOTICES
All notices required by this Operating Guaranty Agreement shall be in writing and shall,
unless and until different or additional addresses are substituted, shall be sent as follows:
a. If to the Guarantors, to:
1 And to:
b. If to County, to:
County of Hawai i
Department of Environmental Management, Solid Waste Division
25 Aupuni Street, Room 210
Hilo, HI 96720
Attention: Director
9. GOVERNING LAW AND JURISDICTION
This Operating Guaranty Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Hawaii. The Guarantors hereby agree to submit to
service of process in, and to the jurisdiction of the courts of the Third Circuit of the State of Hawaii,
in connection with any case or controversy arising out of the interpretation, application or
enforcement of this Operating Guaranty Agreement.
10. NO SET OFFS
No set-off, counterclaim, reduction or diminution of any obligation, or any defense of any kind or
nature which the Guarantors have or may come to have against the County shall be available
hereunder to the Guarantors except as set forth in Article 3, hereof, provided that nothing
contained herein shall prohibit the Guarantors from asserting any claim against the County in a
separate proceeding, which proceeding shall in noway delay the prompt performance by the
Guarantors of their obligations hereunder.
IN WITNESS WHEREOF, the parties hereto, acting by and through the below named
officers, have hereunto set their hands and seals the day and year first above written.